Boal v. Morgner

• Decision Date: 31 March 1870
• Citation: 46 Mo. 48
• Parties: W. F. BOAL, ADMINISTRATOR OF THE ESTATE OF MARY T. DUGAN, Respondent, v. ALBIN MORGNER, Appellant.
• Court: Missouri Supreme Court

46 Mo. 48

W. F. BOAL, ADMINISTRATOR OF THE ESTATE OF MARY T. DUGAN, Respondent,

v.ALBIN MORGNER, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from Sixth District Court.

Lewis, Lackland & King, for respondent.

Dryden & Dryden, and Krum & Decker, for appellant.

BLISS, Judge, delivered the opinion of the court.

The defendant conveyed to a trustee, for the use of plaintiff's intestate, by deed without covenants of seizure or warranty, certain real estate in the city of St. Charles, and for a full consideration received from her. After her death, her administrator prosecuted this suit against defendant for false and fraudulent representations in regard to his title, made to her at the time of the purchase, and charges him with representing that a certain judgment had been by him paid and satisfied, and was not in the way of his passing a good title by said deed, when in fact he had himself, upon execution upon the same judgment, bid off a portion of the same land, and caused it to be conveyed by the sheriff to a third person, and thus had created a better legal title through said judgment than that conveyed to Mrs. Dugan's use.

The petition shows that decedent paid the purchase money and received the deed, trusting to defendant's representation; that she, during her life, and her administrator since her death, had been subjected to large expenses to disencumber the title of said encumbrance, and asks for compensation in damages for the sums so expended. The plaintiff obtained judgment, which was affirmed in the District Court, and defendant brings the case here, claiming that there was error in refusing proper declarations of law, and in overruling the motion in arrest.

The defendant contends--and sought to raise the question by declarations of law and by his motion--that the plaintiff had no right to sue, inasmuch as his intestate was a femme covert at the time of the deception, and her husband is still living. But the deceptions pertained to and affected the title of her separate estate, and to make it as good as was represented, she and her administrator, and not her husband, were subjected to the expenses sought to be recovered back. Upon every rule that governs the separate estate of the wife, granting her its exclusive control, and subjecting it to her contracts and to hers alone, it must be considered as held by her divested of any interest in the husband. I can not, then, see upon what principle, in a suit pertaining to such estate, he should be required to prosecute; for parties in interest only are bound to sue. And besides, this action was brought while section 8, chapter 161, of the revision of 1865 was in force, and before it was changed in 1868, as incorporated in section 8, Wagn. Stat. 1001, and...