Bobb v. Taylor

• Decision Date: 19 April 1887
• Citation: 25 Mo.App. 583
• Parties: MARTHA E. BOBB ET AL., Respondents, v. LUCY G. TAYLOR, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 583

MARTHA E. BOBB ET AL., Respondents, v. LUCY G. TAYLOR, Appellant.

Court of Appeals of Missouri, St. Louis.

April 19, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

T. J ROWE, for the appellant: The possession of the wife is the possession of the husband, and he is a necessary party to an action for the recovery of her lands. Gray v Dryden, 79 Mo. 108; Mueller v. Kaessman, 84 Mo 330; Gideon v. Hughes, 21 Mo.App. 530; Cooper v. Ord, 60 Mo. 420; Bledsoe v. Sims, 53 Mo. 308; Kanaga v. Railroad, 76 Mo. 215. Trusts for the protection of married women are active trusts, and are not executed by the statutes, and there can be no separate estate without the intervention of trustees, either nominated in the instrument creating the estate or by operation of the principles of equity. If no trustee is named in the instrument creating the separate estate, equity will step in and treat the husband as trustee. Schafroth, Adm'r, v. Ambs, 46 Mo. 118; 9 Mo. 773; Hill on Trusts (2 Am. Ed.) 585; Wells on Separate Property of Married Women, sect. 288, p. 309; Bank v. Woodruff, 1 Green Ch. (N. J.) 118; Riley v. Riley, 25 Conn. 161. In a suit affecting a married woman's separate property, the trustee is a necessary party. Siemers v. Kleeburg, 56 Mo. 196. The legal estate can only be reached through the trustee. Claflin v. Van Wagoner, 32 Mo. 253; Sutton v. Hayden, 62 Mo. 101. The right of possession runs with the legal estate and is in the trustee and trustee only. Siemers v. Schrader, 88 Mo. 23; Johnson v. Houston, 47 Mo. 227.

M. KINEALY and JAMES R. KINEALY, for the respondents: On a trial in forcible entry and detainer it is not competent to prove title, or right of possession, as the only things to be established are possession, the forcible entry and detainer. St. Louis Agr. & Mech. Ass'n v. Reinecke, 21 Mo.App. 478. The action can be brought by a married woman whose possession has been invaded. The State v. Hulick, 33 N.J. Law, 310; Sharpless v. West Chester, 1 Grant 257. In respect to her separate property, a married woman is to be considered in all respects as though she was a feme sole. Dyer v. Wittler, 4 West Rep. 673; Cooper v. Ord, 60 Mo. 430; Lincoln v. Rowe, 51 Mo. 574; Silvey v. Summer, 61 Mo. 255.

OPINION

ROMBAUER J.

The only question arising upon this appeal, is whether or no, it is a legal impossibility for any married woman in this state to have such possession of real estate as to maintain an action for the violation of that possession, and that question arises upon the following facts disclosed by the record:

On the first day of June, 1885, a writ of restitution for the property in controversy issued in favor of Martha E. Bobb and Charles Bobb, her husband, and against the defendant herein, and under that writ, the sheriff delivered the property to Charles Bobb, as agent for his wife, Martha E. Bobb, September 3, 1885. On the same day, the defendant reë ntered the premises by force, and, thereafter, Martha E. Bobb and Charles Bobb, her husband, instituted this action of forcible entry against her. The complaint states, that Martha E. Bobb was lawfully possessed of the premises on the day stated, and that the defendant forcibly entered upon such possession, and forcibly detains the possession from her, and is verified by Martha E. Bobb.

These facts appearing, the plaintiffs recovered judgment. Upon the trial of the cause, the defendant objected to the introduction of any evidence in support of the complaint, on the ground that it was not properly verified. The statute, section 2423, Revised Statutes, requires that the complaint must be verified by the aggrieved party, his agent, or attorney, and the supreme court, in Fletcher v. Keyte (66 Mo. 285), decided that a complaint not verified is void and gives the justice no jurisdiction. The argument of the appellant is, that this, being a mere possessory action, the right of possession was conclusively in the husband, and he alone could sue for the violation of the possession, that it results from this, that the wife was not the aggrieved party, neither could she verify the complaint, as her husband's agent or attorney, because she was not a competent witness in his behalf.

In reply to this argument we say that, while the right of possession of the wife's lands, when held by legal title is prima facie in the husband, and when held by equitable title, without an...