Gay v. IHM

• Decision Date: 30 April 1879
• Citation: 69 Mo. 584
• Parties: GAY v. IHM et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

69 Mo. 584

GAY

v.IHM et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1879.

Error to St. Louis Court of Appeals.

This was a suit against Maria Anna Ihm and Jacob Ihm, her husband, to charge the separate estate of said Maria with the payment of a sum of money alleged to be due from her to plaintiff for the rent of certain premises held by her of plaintiff, under a written lease. The answer of Mrs. Ihm denied that she was indebted to plaintiff; denied that she ever knowingly accepted a lease of the premises; charged that she was induced to sign the lease relied on by plaintiff by fraudulent misrepresentations of plaintiff's agent; and denied that she had any separate estate. On the issues thus joined the defendants demanded a trial by jury, which was refused, and the case was tried before the court. The plaintiff offered in evidence a lease signed by Mrs. Ihm by which she covenanted to pay rent for certain premises to be used as a hotel at the rate of $1,500 per annum. He also offered a deed to the property sought to be charged as the separate estate of Mrs. Ihm, the habendum clause of which was as follows: To have and to hold * * * unto the said Maria Anna Ihm, for her sole and separate use, benefit, and behoof, separate and apart from her said husband, and for her heirs and assigns forever, with full power by her deed duly executed and joined in by her said husband, to encumber, sell, and convey the same conditionally or absolutely, and the same shall belong absolutely to the said Maria Anna Ihm as her own undivided and separate property forever.

Defendants also offered evidence on their part. There was a finding and judgment for the plaintiff, from which the defendants appealed to the St. Louis court of appeals, where the judgment was affirmed and defendants then sued out this writ of error.

E. L. Gottschalk for plaintiff in error.

1. The defendants were entitled to have the issues of fact raised by the pleadings tried by a jury. 2. Where a married woman executes a note, the courts hold that it is evidence of an intention to charge her separate estate without the note mentioning the fact. The reason is that her separate estate affords the only means of satisfying the note, and if she agreed to pay, she must have had her separate property in view and depended on it to pay the note. London Chartered Bank v. Lempriere, 2 Am. Law Record 413. Does this rule apply to the case at bar? Was her separate property her only means of satisfying, or did she expect the hotel to pay, the rent? Here the lease is made, and Mrs. Ihm was to acquire a revenue out of the very matter. Her undertaking is to pay rent. Rent is defined to be “something which a tenant renders out of the profits of the lands or tenements which he enjoys.” 2 Washb. Real Prop. 5.

Cline, Jamison & Day and Foster T. Martin for defendant in error, cited Bruner v. Wheaton, 46 Mo. 363; Clark v. Maguire, 16 Mo. 302; N. A. Coal Co. v. Dyett, 7 Paige 9; Metropolitan Bank v. Taylor, 53 Mo. 444; Kimm v. Weippert, 46 Mo. 532; Green v. Sutton, 50 Mo. 186; DeBaun v. Van Wagoner, 56 Mo. 347; Burnley v. Thomas, 63 Mo. 390; 2 Kent Comm. 164.

SHERWOOD, C. J.

Plaintiff was successful in the circuit court in his endeavor to subject the separate estate of...