First National Bank of Stronghurst, Illinois v. Kirby
| Decision Date | 20 December 1916 |
| Citation | 190 S.W. 597,269 Mo. 285 |
| Parties | FIRST NATIONAL BANK OF STRONGHURST, ILLINOIS, v. CHARLES W. KIRBY et al.; ADDA KIRBY, appellant |
| Court | Missouri Supreme Court |
Appeal from Knox Circuit Court. -- Hon. Charles D. Stewart, Judge.
Reversed and remanded (with directions).
O'Harras Wood & Walker, J. C. Dorian and Boyd & McKinley for appellant.
(1) The findings of fact and judgment in the former suit, case No 6901, taken in connection with the opinion of the Supreme Court are final upon all parties to that action on all the issues which were submitted to the court in that cause, or which might have been submitted to the court in that cause and were there determined, until the same have been reviewed, set aside or altered by the action of the circuit court in pursuance of the mandate of the Supreme Court. Crispen v. Hannahan, 50 Mo. 418; Larue v. Kempf, 185 Mo.App. 69; Bank. v. Witmer, 171 Mo.App. 352; Summet v. Realty Co., 208 Mo. 511; Bank v. Tracy, 141 Mo. 258. (2) Plaintiff in its reply admitted that Adda Kirby, only owned an inchoate dower therein. This is in accordance with the proof of title. While the trust deed or mortgage in question purports to have been acknowledged before J. F. McMillan, a notary public, yet as a matter of fact, it was never acknowledged before him either by Charles W. Kirby or appellant, Adda Kirby, his wife, as required by Secs. 2788, 2794, 2796, 2799 or Sec. 358, R. S. 1909, and, therefore, under no circumstances could appellant's inchoate dower in said real estate be impressed with the lien of said mortgage. Young v. Hyde, 255 Mo. 496; McCreary v. Lewis, 114 Mo. 582; Chrisman v. Linderman, 202 Mo. 613; Grady v. McCorkle, 57 Mo. 174; Runnells v. Gerner, 80 Mo. 483; Hoskinson v. Atkins, 77 Mo. 540; Devorse v. Snider, 60 Mo. 240; Shroyer v. Nickell, 55 Mo. 264; Atkinson v. Henry, 80 Mo. 154; Hall v. Smith, 103 Mo. 289; Kenney v. McVoy, 206 Mo. 42; Rivard v. Railroad Co., 257 Mo. 135; Genoway v. Maize, 163 Mo. 232; Bartlett v. O'Donaghue, 72 Mo. 563; Goff v. Roberts, 72 Mo. 570; Brannock v. Magoon, 216 Mo. 727; Linton v. Cooper, 73 N.W. 733. The statute, section 2788, provides that dower can be released only by a "joint deed acknowledged and certified." Sec. 358 provides that nothing the husband can do will bind the wife with reference to dower "without the assent of the wife evidenced by her acknowledgment thereof," and the above authorities hold that her relinquishment of dower must be in accordance with the statutory requirements. Inchoate dower cannot be relinquished in any manner other than that prescribed by statute, and as it is not a subject of grant or assignment, it cannot be made the subject of an execution sale. Durrett v. Piper, 58 Mo. 554; Bohannon v. Combs, 97 Mo. 448; Brannock v. Magoon, 216 Mo. 727; Magwire v. Riggin, 47 Mo. 532; Frederick v. Eming, 186 Ill. 319; Re Lingafelter, 181 F. 24, 32 L. R. A. (N. S.) 114; Rice on the Modern Law of Real Property, p. 147; 2 Scribner on Dower (2 Ed.), p. 313, par. 49; 14 Cyc. 925, 929; 1 Corpus Juris 752 (note f.), 763; McCrillis v. Thomas, 110 Mo.App. 703.
F. H. McCullough and W. C. Ivins for respondent.
(1) The case of First National Bank of Stronghurst, v. Kirby, is the law of this case, upon the question of the validity of the deed of trust, as to the interest of appellant in the lands in question. Bank v. Kirby, 175 S.W. 926. (2) The judgment in this case is sufficient as a judgment of foreclosure. Respondent did not ask a personal judgment against appellant. Trumbo v. Flournoy, 77 Mo.App. 324; Hoskinson v. Adkins, 77 Mo. 537; Hagerman v. Sutton, 91 Mo. 519. (3) There can be no question of res adjudicata in this case, as to the interest of appellant, for the reason that case No. 6901 was reversed and remanded, as to the appellant, by the Supreme Court, and was dismissed before the case at bar was tried. Bank v. Kirby, 175 S.W. 926. (4) The contention of appellant, that respondent has split its cause of action cannot stand the light of investigation. There was no splitting. Suit 6901 was dismissed as to appellant before there was an adjudication. (5) Both of the sections 2788 and 358 prescribe the same rules for conveying the separate estate of the wife as that which pertains to inchoate dower, and the later decisions have held that, since the enactment of the Married Womans' Statute, the wife is bound, even though the deed be unacknowledged or the acknowledgment be faulty or forged. Bank v. Kirby, 175 S.W. 926; Sec. 8304-8309, R. S. 1909; Bank v. Hageluken, 165 Mo. 450; Rice, Stix & Co. v. Sally, 176 Mo. 131; Kirkpatrick v. Pease, 202 Mo. 490; Evans v. Morris, 234 Mo. 186; O'Day v. Meadows, 194 Mo. 614; Glasscock v. Glasscock, 217 Mo. 362; Harvey v. Long, 168 S.W. 708; Rivard v. Railroad, 257 Mo. 159. (6) An unacknowledged mortgage is good, as between the parties. Bennett v. Shipley, 82 Mo. 448; Genoway v. Maize, 163 Mo. 224; Finley v. Babb, 173 Mo. 257.
This is the second action brought by plaintiff, against defendants, in the circuit court of Knox County, Missouri, to foreclose the same mortgage on 200 acres of land in said county, the legal title to which stood in the name of defendant, Charles W. Kirby, at the time of the execution of said mortgage. The defendants are husband and wife, and reside at Stronghurst, Illinois. Plaintiff is engaged in the banking business in said city.
On October 15, 1909, defendants executed and delivered to Elmer E. Taylor, four promissory notes, aggregating $ 7500, due five years after date, which were attempted to be secured by a mortgage, for said amount, on the Knox County land aforesaid. Said notes and mortgage were signed by defendants, but the mortgage was never acknowledged. The above notes and mortgage were duly assigned to the plaintiff, and the latter is still record owner thereof.
On April 12, 1911, plaintiff instituted in the circuit court of Knox County aforesaid, an action -- numbered in said court 6901 -- against the present defendants to foreclose said mortgage. Defendant Adda Kirby filed her separate answer in said cause, and alleged therein that at the time said mortgage was signed she was the wife of her co-defendant; that they were then the owners of said 200 acres by the entirety; that the loan was for the sole use of her husband and that she received no part of the money advanced; that the deed was never acknowledged by her; that the money loaned by Taylor to her husband belonged to plaintiff, and that the loan was made through Taylor to avoid the provision of the National Bank Act, limiting the amount the bank might loan to one person to ten per cent upon its capital, which was only $ 35,000; that the plaintiff had no lawful authority to loan upon Missouri lands as security; that for these reasons the mortgage was void and she asked that the same be cancelled. Elmer E. Taylor was the cashier of plaintiff, and the $ 7500 loaned was the property of the latter.
On December 22, 1911, the circuit court, in disposing of case 6901, rendered a judgment and decree of foreclosure against the interest of defendant Charles W. Kirby in the land aforesaid, but as a part of the same judgment decreed that said mortgage was never acknowledged by said defendants or either of them, and that said "mortgage deed is null and void and of no effect as to the interest of said Adda Kirby in and to all said real estate." The plaintiff in said cause filed a motion for a new trial, setting up that the judgment on all issues should have been for plaintiff against both defendants, which was overruled, and an appeal taken to this court. We reversed and remanded the cause, for the reason that there was no final judgment rendered in the case discharging Adda Kirby from the suit, or even awarding her costs. [Bank v. Kirby, 175 S.W. 926.] We likewise held that: "No cause of action existed in favor of the plaintiff at the time the suit was brought." The case having been tried throughout on the theory that defendants were tenants by the entirety, we expressed our views of the law upon this subject, but did not consider or decide whether the inchoate right of dower of defendant Adda Kirby was conveyed by said mortgage.
On March 23, 1915, plaintiff instituted, in the circuit court of Knox County aforesaid, the present action, against Kirby and wife, to foreclose said mortgage -- the foregoing notes having become due -- and the defendants filed separate answers in said cause.
The opinion and mandate of this court, in case 6901, was filed in the circuit court of Knox County, on May 1, 1915. On June 10, 1915, plaintiff dismissed said cause, as to defendant Adda Kirby.
Charles W. Kirby filed his separate answer in the present suit, on June 7, 1915, and pleaded former adjudication.
(1) The separate answer of Adda Kirby filed herein, among other things, sets out the proceedings in case 6901 supra, which culminated in a decree of foreclosure of her husband's interest in said land, which was not appealed from. (2) She pleads said judgment in her own behalf, holding said mortgage to be null and void as to her interest in said land. (3) She avers that John W. Harkness and wife, on March 2, 1896, conveyed the land in controversy to Charles W. Kirby, and that she signed said notes solely as the wife of said co-defendant. (4) She alleges that she has no interest in said land that is subject to sale under said trust deed or any decree rendered thereon, etc. (5) She avers that said cause 6901 was, on June 10, 1915, dismissed as to her; and that as plaintiff foreclosed its deed of trust, as to the interest of Charles W. Kirby in said land, it cannot split its cause of action and foreclose said deed of trust as to her inchoate right of dower...
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