Davis v. Smith

• Citation: 75 Mo. 219
• Parties: DAVIS, Appellant, v. SMITH.
• Decision Date: 31 October 1881
• Court: Missouri Supreme Court

75 Mo. 219

DAVIS, Appellant,

v.SMITH.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

C. W. Thrasher for appellant.

The note sued on was clearly a charge and lien on the separate property of the defendant Harriet Smith. Claflin v. Van Wagoner, 32 Mo. 252; Whitesides v. Cannon, 23 Mo. 457; Segond v. Garland, 23 Mo. 547; Coats v. Robinson, 10 Mo. 757; Schafroth v. Ambs, 46 Mo. 114; Pemberton v. Johnson, 46 Mo. 342; Tucker v. Gest, 46 Mo. 339; Bruner v. Wheaton, 46 Mo. 363; Kimm v. Weippert, 46 Mo. 532; Miller v. Brown, 47 Mo. 504; King v. Mittalberger, 50 Mo. 182; Metropolitan Bank v. Taylor, 62 Mo. 338; Lincoln v. Rowe, 51 Mo. 571; Morrison v. Thistle, 67 Mo. 596; Staley v. Ivory, 65 Mo. 74; Meyers v. Van Wagoner, 56 Mo. 115. Every material allegation of plaintiff's petition, not denied by the answer of defendants is, for the purposes of this action, to be taken as true. R. S., § 3545; Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Bartholow v. Campbell, 56 Mo. 117; Marshall v. Ins. Co., 43 Mo. 586; Tomlinson v. Lynch, 32 Mo. 169; 2 Whart. on Ev., § 1112. The answer of Harriet Smith is taken as the answer of the minor defendants, who at her death succeeded to her interest in the real estate sought to be charged, and are her successors in interest in this suit. R. S., § 3667. The admissions in her answer are competent evidence in this suit. 1 Whart. on Ev., §§ 226, 1156, 1219; Crane v. Gough, 4 Md. 316. At the death of defendant Harriet Smith her heirs at law were her only proper and necessary successors as parties to this suit. R. S., § 3663; Belcher v. Schaumburg, 18 Mo. 189; Fine v. Gray, 19 Mo. 33; Brewington v. Stephens, 31 Mo. 38; Jones v. Skipworth, 9 Beav. 237; Waldorph v. Bortle, 4 How. Pr. 358; Milligan v. Milledge, 3 Cranch 220, 228; Edwards on Parties, pp. 122, 132; 2 Van Santv. Eq. Prac., (3 Ed.) pp. 75, 76; 1 Van Santv. Plead., pp. 180, 181; Story's Eq. Plead., (Redf. Ed.) §§ 175, 354a, 364; Wells' Sep. Prop. of Marr. Wom., § 613; King v. Little, 77 N. C. 138. The plaintiff in this suit seeks only to enforce his claim against the land described in the petition as the separate property of the defendant Harriet Smith. No personal judgment could in any event be rendered against her in this suit. Weil v. Simmons, 66 Mo. 617; Lincoln v. Rowe, 64 Mo. 138; Gage v. Gates, 62 Mo. 412; Wernecke v. Wood, 58 Mo. 352; Caldwell v. Stephens, 57 Mo. 589; Wells' Sep. Prop. of Marr. Wom., § 619. The evidence shows that she had no personal estate whatever, and, therefore, there was no need of an administrator of her estate; and if one had been appointed he could have had no interest in this suit, as it relates solely and entirely to the enforcement of a specific lien on real estate, which had descended to the heirs of the deceased defendant.

George Hubbert for respondents.

There having been no proof of the execution of the note, plaintiff was not entitled to a decree. Wag. Stat., 1050, § 5; Ib., 1046, § 46; Brickenkamp v. Rees, 3 Mo. App. 585; s. c., 69 Mo. 427; 1 Whart. Civ. Ev., (2 Ed.) § 838. Mrs. Smith being dead, appellant must pursue the ordinary remedy of a creditor against the property and estate of a deceased debtor. Upon death, intestate, of a married woman having separate property, the realty descended, at common law, to the heir; and the personalty the husband took absolutely through the medium of administration by himself. 2 Redf. on Wills, *179. But in this State all her property is liable to creditors of the intestate, in satisfaction of debts, and the remainder goes to heirs. Leakey v. Maupin, 10 Mo. 368; Gillet v. Camp, 19 Mo. 404; Coughlin v. Ryan, 43 Mo. 99; Welch v. Welch, 63 Mo. 60. Since the death of Mrs. Smith, the property in question has no peculiarities attending it, and must be reached as any other property she may have died seized of; for separate property accommodates itself to the changes in relations of its owners, freeing itself from trust hands with removal of coverture. Roberts v. Moseley, 51 Mo. 286; Baker v. Nall, 59 Mo. 268; Metrop. B'k v. Taylor, 53 Mo. 444; Hill on Tr., *419; Story Eq., §§ 1384, 1397; Williams on Exrs., *742, note k; 2 Bishop Marr. Wom., § 554. Plaintiff cannot follow the specific property on the ground that he has a lien. The execution of a contract which equity will charge upon separate property cannot be deemed an equitable mortgage or a lien of any kind, such as needs to be enforced by a decree against any particular property after the marriage relation has ceased. Owens v. Dickenson, 1 Craig & Phil. 48. True, during life and coverture no general, personal judgment can be rendered against a femme covert on account of obligations contracted during coverture, and hence the necessity for the offices of equity; but after her death all her creditors, whether their claims be founded upon obligations entered into during or before coverture, stand on the same ground, and obligations will be paid out of what had been sole and separate property, which in her life could not have been charged against it. Gregory v. Lockyer, 6 Madd. 90; Anon., 18 Ves. 258; Norton v. Turvill, 2 P. Will. 144; Roper's Husb. and Wife, ch. 21, § 3, pp. 238, 245. If all creditors be on the same footing, they must pursue the same remedies to obtain satisfaction. If the note was at all the obligation of Harriet Smith, the holder was her creditor, and it, after her death, was a demand against her estate and must be collected accordingly, for “all demands against the estate of any deceased person” are provided for by statute. 1 Wag. Stat., 101, § 1; 102, §§ 3, 4, 8, 9; 105, § 29. That plaintiff is to be regarded in the light of a creditor is shown by the following authorities: Story Eq., § 1401; Morrison v. Thistle, 67 Mo. 601; Gay v. Ihm, 69 Mo. 586; DeBaun v. Van Wagoner, 56 Mo. 347; Owens v. Dickenson, supra; Ozley v. Ikelheimer, 26 Ala. 332; Caldwell v. Sawyer, 30 Ala. 285; Walker v. Smith, 28 Ala. 569; Collins v. Rudolph, 19 Ala. 616; Gunn v. Samuels, 33 Ala. 201; Cowles v. Morgan, 34 Ala. 535; Coats v. Robinson, 10 Mo. 757; Whitesides v. Cannon, 23 Mo. 457; Claflin v. Van Wagoner, 32 Mo. 252; Schafroth v. Ambs, 46 Mo. 114; Miller v. Brown, 47 Mo. 504; 10 Cent. L. J. 404; Peachey Marr. Settl., 269, et seq.; Bishop Marr. Wom., §§ 857, 858, 864; Taylor v. Meads, 34 L. J. N. S. Ch. 203, 207. If, in contemplation of equity, the holder of the note is a creditor, and decedent made an obligation which constituted her a debtor, these relations are as fully cognizable in our probate courts as in any other. Titterington v. Hooker, 58 Mo. 598. So, it would be no objection to our position if, formerly, such cases were proper subjects of chancery jurisdiction, since the jurisdiction of probate courts would seem to be exclusive, and, at the utmost, the circuit court could go no further than to ascertain the debt and certify its judgment to the probate court for classification and payment. Wernecke v. Kenyon, 66 Mo. 275; Titterington v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 271. How, then, could appellant have any valid judgment in this case, for any purpose, without having the administrator in court?

HENRY, J.

This was a suit originally against Harriet and Patrick R. Smith, her husband, and Robert, as trustee of the said Harriet, wherein it was sought to charge the separate estate of Mrs. Smith with the payment of the balance of a note executed by her, her husband and her said trustee, payable to the plaintiff. Mrs. Smith died while the suit was pending and after defendants had answered, each admitting the execution of the note, and the husband and wife alleging her coverture when the note was executed; that she received no consideration for her signature; that it was procured by fraud on the part of the plaintiff; that it was not voluntarily executed by Patrick, and that Harriet signed by compulsion of her husband, to which plaintiff was a party, and that she did not thereby intend to charge her separate estate with payment of the note. Robert's answer admitted his execution of the note as trustee of said Harriet. In February, 1875, plaintiff filed a replication to this answer, denying all its defensive allegations. Subsequently Harriet died, and this suit was revived against her heirs at law, and Geo. Hubbert was appointed their guardian ad litem, and as such filed an answer denying all the allegations of the petition, to which no replication was filed. The cause was taken from the circuit court of Newton county, where it originated, to Greene county, by change of venue, where, on a trial at the October term, 1877, defendant had judgment, from which plaintiff has appealed.

On said trial plaintiff read as evidence those parts of the answer of the original defendants admitting the execution of the note, the note itself, a deed conveying the property in question to Robert as trustee for the separate use, etc., of Harriet Smith, and proved that she had no other estate, and that there had been no administration on her estate. No objection was made to the admission of any of the evidence, and the judgment must have been based upon the conclusion that the circuit court had no jurisdiction of the cause, Mrs. Smith having died while it was pending. In other words, the argument made here must have prevailed in the circuit court, that, after the death of Mrs. Smith, the plaintiff had a legal demand which he could have presented for allowance in the probate court, or that the administrator of her estate, instead of the heirs, was the proper party, even if the circuit court could retain, because it had once acquired, jurisdiction. The question is, therefore, presented, whether the plaintiff had a claim against Mrs. Smith or her property, of which the probate court had jurisdiction.

1. MARRIED WOMAN'S OBLIGATION: its general nature

As to the precise nature of the obligation of a femme covert who had a separate estate when it was incurred,...