Gabriel v. Mullen

• Decision Date: 20 June 1892
• Parties: GABRIEL v. MULLEN.
• Court: Missouri Supreme Court

19 S.W. 1099

111 Mo. 119

GABRIEL v. MULLEN.

Supreme Court of Missouri.

June 20, 1892.

HUSBAND AND WIFE — WIFE'S SEPARATE ESTATE — LIABILITY FOR NECESSARIES.

Under Rev. St. 1879, § 3269, which provides that the wife's personal property shall be her separate property, and shall not be liable to be taken for the debts of the husband, but shall be subject to execution for any debt of the husband for necessaries for the wife or family, a wife's separate property may be seized on execution under a judgment against the husband alone, where the judgment debt was for necessaries for the family. SHERWOOD, C. J., and MACFARLANE and GANTT, JJ., dissenting. Bedsworth v. Bowman, 15 S. W. Rep. 990, 104 Mo. 44, overruled.

In banc. Appeal from circuit court, Jasper county; M. G. MCGREGOR, Judge.

Replevin by Jennie R. Gabriel against one Mullen. Defendant had judgment, and plaintiff appeals. Affirmed.

Robinson & Crow, for appellant. T. B. Haughawout, for respondent.

BARCLAY, J.

This is a statutory action in the nature of replevin to recover possession of a roan mare as the property of the plaintiff, Mrs. Jennie R. Gabriel, a married woman. The defendant, a constable, asserted by his answer a special property in the animal by virtue of a levy upon an execution against John F. Gabriel, husband of the present plaintiff. Plaintiff obtained possession of the property under an order of delivery, having given the usual bond in replevin therefor. The case was tried before a jury, a verdict for defendant resulted, and plaintiff appealed to the Kansas City court of appeals. The latter transferred it to this court under the provisions of the constitution. Amend. 1884, § 6. The argument here, and the proceedings in the trial court, indicate that the material facts are mutually conceded. The mare was the property of Mrs. Gabriel, a gift from her father. The levy upon it by defendant, May 22, 1885, was under a judgment of the day before, in favor of Dr. August Rhodes against Mr. Gabriel alone, upon a note of the latter given for an indebtedness for medical services in 1876 to Mr. and Mrs. Gabriel and her children. Mrs. Gabriel was not named in the note or in the judgment.

1. Upon these facts it is claimed by plaintiff that the mare of Mrs. Gabriel was not subject to levy for the debt of her husband, even though created for necessaries for the wife and family. The statute of 1875 declares that the personal property of the wife shall "be and remain her separate property, and under her sole control, and shall not be liable to be taken by any process of law for the debts of the husband; * * * but such property shall be subject to execution * * * for any debt or liability of her husband, created for necessaries for the wife or family." Rev. St. 1879, § 3296. Prior to this enactment, the wife's personality in possession became answerable, upon her marriage, for all her husband's debts of every nature. When the legislature saw fit to create a statutory separate estate in such property, and vest it in her, free of liability, "to be taken by any process of law for the debts of the husband," it had the power to determine, as it did, the extent of the new estate, by providing that such property should remain (as it had been) "subject to execution" for the particular class of debts indicated. This court had already held that a wife, owning a sole and separate equitable estate, might, nevertheless, charge her husband for necessaries for her support. Miller v. Brown, (1871,) 47 Mo. 508. In view of his personal liability for such necessaries, the legislature, no doubt, considered it proper and just that her personal property, as well as his, should continue liable therefor. So it placed the limitation mentioned upon her separate ownership of it. That such was the intent of this legislation we think its terms plainly show.

2. But it appears to be supposed that to permit the enforcement of such a liability, by means of an ordinary execution on a judgment against the husband only, would violate some right of the wife to have a "day in court." We have already seen that the statute not merely charges her property with a liability for such necessaries, but expressly subjects it "to execution" for that kind of a debt "of her husband." This is precisely the mode in which such property was reached for the satisfaction of general liabilities of the husband, before the passage of the amendment of 1875. Barbee v. Wimer, (1858,) 27 Mo. 140. In construing any statute, it is proper, and often useful, to consider the then existing state of the law as casting light on the intended scope of the change made. Here it seems that the former liability of the wife's property, as to debts of the husband for family necessaries, was designed to continue. Then what more natural and reasonable than that the existing mode of enforcing such liability should likewise be continued, as the language of the statute imports. But is it in harmony with the constitution to so provide? Would it be "due process of law" to permit her property to be seized upon an execution against the husband for such a debt without a previous hearing and judgment to which the wife was a party? Of course, she always has the right to try the issue whether or not the execution debt was in fact created for such necessaries. She is not concluded on that issue by a judgment against her husband to which she is no party, and hence there is nothing in the suggestion that she might be bound by his collusive action with the creditor in allowing the judgment to go. Since the act of 1883 (Sess. Acts 1883, p. 113) she may sue "in her own name, and without joining her husband," and may herself raise the issue as to such necessaries in several ways, — by replevin, (as in the case at bar;) or by notice to the officer of her claim, and an action upon his bond; or against him alone for trespass; perhaps in other forms. But it is nothing new or abnormal in legal procedure that property should be made liable to a particular charge, and subjected to seizure accordingly, without a prior hearing as to the facts creating such charge. It rests in the sound discretion of the legislature to permit this, within constitutional limits. Familiar illustrations of such proceedings are close at hand. Thus, where one has received, without evil motive, a gift of personal property from another, who turns out to have been then insolvent, a creditor of the latter (on obtaining a judgment against him) may levy on the subject of the gift, in possession of the donee, without any previous action against him to establish the fact of such gift. In such case the title passes out of the giver; but as to his existing creditors, however honest in fact the transaction may be, the title only passes subject to their just demands against it, by force of positive law. Rev. St. 1889, § 5170; Woodson v. Pool, (1854,) 19 Mo. 340; Potter v. McDowell, (1860,) 31 Mo. 62. Similar consequences follow where a person buys personality with a purpose to aid the seller in defrauding his creditors. Though the title may pass as between the immediate parties, the creditors, upon an execution against the seller, may take it from the buyer in satisfaction of their claims, without any prior legal ceremony to adjudicate the facts mentioned.

Again, where one acquires, in good faith and for full value, personal property of the defendant in a justice's judgment, after the execution thereon has been placed in the hands of the constable, he takes the title subject to the charge created by the execution, which may be enforced, by a diligent creditor, by mere levy upon the property in the possession of the purchaser. State v. Blundin, (1862,) 32 Mo. 387. It was never supposed to be necessary to begin a new action against the latter to obtain another judgment asserting such lien. The law itself impresses these limitations upon the ownership of property in such circumstances as have been indicated in these examples. In the case of a married woman, it imposes upon her statutory title to personality the burden of responding to an execution against the husband upon a debt created for family necessaries. The statute fixes that liability in the nature of a charge upon her property, where certain essential facts exist. Their existence she may deny and contest, if desired, in various modes, already alluded to; but there is nothing of an unconstitutional nature in the law creating such a charge. It is "due process of law," as much so as are statutes declaring that, upon certain specified facts, a charge, by way of lien, shall arise upon personal property, in whosesoever hands it may be, to secure a debt due by another. Spofford v. True, (1851,) 33 Me. 283; Sims v. Bradford, (1883,) 12 Lea. 434; Winslow v. Urquhart, (1875,) 39 Wis. 260. The liability of the wife's personal estate to respond to an execution for the husband's judgment debt for family necessaries is nothing but a statutory qualification or condition annexed to the separate ownership conferred. It is not an entirely extraordinary condition. Formerly, under an Iowa statute, the wife was invested with a qualified separate estate in personality, on condition that an inventory of such property should be filed for public record, in default of which the property, if in the husband's custody, should be liable in some circumstances for his general debts; and in several cases the supreme court approved the enforcement of such liability by direct levy on the wife's property, on execution against the husband alone, without any preliminary proceeding against the wife, because the statute so provided. Williams v. Brown, (1869,) 28 Iowa, 247; Presnall v. Herbert, (1872,) 34 Iowa, 539. Again, in Massachusetts, a statute made the wife's personal and real property separate estate, and declared it not liable to be taken for his debts; but with the condition that, if she carried on business on her own account, a certain certificate to that...