Claflin v. Van Wagoner

• Decision Date: 31 March 1862
• Citation: 32 Mo. 252
• Parties: WILLIAM CLAFLIN et al., Respondents, v. ADALINE H. VAN WAGONER AND JOHN M. KRUM, Appellants.
• Court: Missouri Supreme Court

32 Mo. 252

WILLIAM CLAFLIN et al., Respondents,

v.ADALINE H. VAN WAGONER AND JOHN M. KRUM, Appellants.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Court of Common Pleas.

Krum & Decker, for appellants.

I. A married woman cannot be sued alone, without the appointment of a next friend, or joining her husband. (R. C. 1855, p. 1218, Art. II., § 7; Cost v. Cost, 4 How., Prac. R. 232; Eliz. Smart, by next friend, v. Comstock, 24 Barb. 411.)

II. The petition did not state facts sufficient to constitute a cause of action against Mrs. Van Wagoner, to entitle the plaintiff to the relief prayed for as against her separate estate.

The petition alleges that the property was conveyed to trustees to the use, &c., “and to be disposed of and employed to such uses and purposes, and in such manner as the said Adaline H. might in writing appoint.” If by the terms of the settlement the wife be restricted in her power of disposition, that would be a fetter upon anticipation or alienation valid in equity. (Adams' Eq. 44, s. p.; Cannon v. Whiteside, 33 Mo. 466.)

The mere endorsement by her in blank of the note sued on was not an appointment in writing, within the terms of the deed. (Yale v. Dederer, 22 N. Y. 450.)

Hitchcock, for respondent.

I. It was not necessary to join the husband of defendant, Adaline H. Van Wagoner.

a. The action did expressly concern her separate estate, and if so she could be sued alone. (R. C. 1855, p. 1218, Prac., Art. II., § 7.)

b. The action was well brought to charge her separate estate, it being an endorsement by her alone. (Whiteside v. Cannon, 23 Mo. 457, 471; Coates v. Robinson, 10 Mo. 757.)

II. The judgment was that her separate estate be charged. Krum was made a party as her trustee; he appeared and defended as such, and no personal judgment was prayed or taken against him.

BATES, Judge, delivered the opinion of the court.

The petition shows the plaintiffs to be the holders of a negotiable note made by Thomas Cohen to the order of Adaline H. Van Wagoner, who endorsed it to the plaintiffs; that the note had matured; a demand and refusal of payment, and notice thereof to Mrs. Van Wagoner. It shows that Mrs. Van Wagoner is a married woman, the wife of Garrett S. Van Wagoner; that, by ante-nuptial deed of trust, she conveyed certain real estate to John M. Krum, the other defendant, “in trust for the sole and separate use, benefit, behoof, and disposal of said Adaline, and to be accounted, reckoned and taken as a separate and distinct estate of and from the estate of said Garrett, and to be disposed of and employed to such uses and purposes and in such manner as the said Adaline H. might in writing appoint;” and charges that Mrs. Van Wagoner by her endorsement of said note became bound and liable to pay the amount thereof to the plaintiffs, and thereby then and there, by law, pledged and appointed her separate estate for the payment of said note. The petition then prayed for judgment against Mrs. Van Wagoner and her separate estate, and that the real estate, or so much thereof as might be necessary to pay said note, interest and costs, be sold to pay the same.

The defendants demurred generally to the petition, Mrs. Van Wagoner appearing by attorney. The demurrer was overruled, and time given the defendants to answer. They failed to answer, and the petition was taken against them as confessed, and judgment perfected against Mrs. Van Wagoner in accordance with the prayer of the petition. The defendants moved an arrest of judgment, for the reasons--

1. That Mrs. Van Wagoner was a femme covert, incapable of being sued without her husband being joined; and

2. That no judgment was prayed against defendant Krum, or cause of action set out against him in the petition.

The motion was overruled, and the defendants appealed to this court.

It is settled that where the femme, having a separate estate, executes a...