Caldwell v. Bower

• Decision Date: 31 March 1853
• Citation: 17 Mo. 564
• Parties: CALDWELL, Respondent, v. BOWER & JOHNSTON, Appellants.
• Court: Missouri Supreme Court

17 Mo. 564

CALDWELL, Respondent,

v.BOWER & JOHNSTON, Appellants.

Supreme Court of Missouri.

March Term, 1853.

1. The relinquishment by a married woman of her dower in real estate sold by her husband, is a good consideration for the notes given for the purchase money and made payable to her, as against her husband's administrator. In a suit by her upon the notes, the administrator cannot interplead to claim them as belonging to her husband's estate.

2. A grantee has no recourse against his grantor upon his covenant of warranty, for money paid to purchase in an adverse title without contestation.

Appeal from Hannibal Court of Common Pleas.

Richmond and Lakenan, for appellants.

A. H. Buckner, for respondent. 1. The interplea of Kunkle was properly stricken out. He had no right to intrude himself into this litigation. If he claimed the debt sued for, his remedy was to have instituted his suit with proper parties, in the nature of an injunction, and thus made a direct issue with the plaintiff. Third parties are allowed to interplead only in attachment suits. 2. The answer was properly stricken out. There is no allegation that the notes were executed in favor of the plaintiff with any fraudulent design towards her husband's creditors. The presumption is, that they were so made in good faith, and in consideration of her relinquishment of dower. She, therefore, was a stranger to any claim the defendants might have against her husband, arising out of the covenant of warranty. 3. But even if she was not a stranger to the covenant of warranty, the averments of the answer are insufficient to make out a legal defense. 4. The question as to the power of the administrator to avoid the acts of his intestate on the ground of fraud, does not arise in this cause. If it did, the law is against the administrator. Henderson v. Henderson, 13 Mo. Rep. 151. McLaughlin v. McLaughlin, 16 Mo.

RYLAND, Judge, delivered the opinion of the court.

The action of the court below, in striking out the interplea of Kunkle, and striking out the greater part of the defendant's answer, leaving nothing in said answer constituting a defense to the action of the plaintiff, are the main grounds relied on for the reversal of the judgment.

The action was brought on three several promissory notes, for five hundred dollars each. These notes were given to the plaintiff by the defendants, and were made payable to her. The defendants admit the execution of these notes, but they endeavor to avoid the payment by alleging, that they purchased a house and lot of James G. Caldwell, the husband of the plaintiff, for four thousand dollars; took a deed with covenants of warranty of title; that the plaintiff relinquished her dower to the premises sold; that James G. Caldwell is now dead; that the house and lot sold were situated in the town of Hannibal; that the inhabitants of Hannibal, ascertaining that a Mrs. Vail had some interest in the tract of land on which Hannibal was laid off and situated, agreed to raise, by a tax authorized by legislative enactment, money to buy out the claim of Mrs. Vail, and thereby quiet their titles; that they (defendants) paid sixty-one dollars for their share of this sum, and they ask a credit for that amount. They also set up that one Bates has a claim on the lot and house thereon, by way of mortgage, to secure the payment of a sum of money. The mortgage was made by the grantor of James G. Caldwell, before the sale to Caldwell of the house and lot; that Bates is now prosecuting a suit for the purpose of making the debt and subjecting the property to sale, and that he has obtained judgment of foreclosure and decree of sale for about five and a half feet front of said lot, taking part of the house; upon which judgment an appeal has been taken to the Supreme Court. The defendants allege that, if this judgment of Bates be not reversed, these defendants will be injured to a very large amount, some thousands of dollars. They also allege that Nathaniel P. Kunkle, the administrator of the estate of said James G. Caldwell, claims the money due by the defendants on these notes; that the county court of said Marion county, by its order, has directed these defendants not to pay the money due on these notes to the plaintiff, or any one else for her; that the estate of said Caldwell is wholly insolvent; that they are ready and willing to pay the debt due on these notes, after having ascertained to whom they should pay it, and having the credits for the Vail claim allowed, and a proper deduction for the amount...