Holthaus v. Hornbostle

• Decision Date: 31 May 1875
• Parties: EMILIE D. HOLTHAUS, et al., Respondents, v. CHARLES HORNBOSTLE, Appellant.
• Court: Missouri Supreme Court

60 Mo. 439

EMILIE D. HOLTHAUS, et al., Respondents,

v.CHARLES HORNBOSTLE, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

Judson, Barnard & Molter, for Appellant.

I. By the common law, the husband, by marriage, acquired an absolute title to all personal property belonging to the wife, and to all personal property subsequently acquired by the wife during coverture. (Reeves Dom. Rel., 1.)

The common law has been modified by the statute exempting from attachment or levy of execution for the sole debts of the husband, the rents, issues and products of the real estate of any married woman (Wagn. Stat., 935, § 14); also personal property consisting of stocks and bonds, given by a parent to a daughter. (Wagn. Stat., 936, § 19; Fiske vs. Wright, 47 Mo., 351; Woodford vs. Stephens, 51 Mo. 443.) But the modification extends no further.

II. There is no pretence in plaintiffs' petition, and no testimony at the trial, of the creation of a trust. They claim the property levied upon as the separate property of the wife, on the sole ground of the naked gift of $600 given to Mrs. Holthaus by Henry Lipps in 1870, when the business was first entered upon. The testimony does not show a state of facts from which a trust can be implied.

III. While this is in form an equitable action by the wife to protect her separate estate from her husband's creditors, the evidence shows it to be in fact an effort on the part of the husband to secrete and protect his own earning from the payment of his debts.

F. T. Ledergerber and Bennett Pike, for Respondents.

I. A trust may be created by parol. (6 Bush., [Ky.] 328; 2 Metc., [Ky.] 509; 37 Barb., 49; 3 Paige Ch., 440; 9 Ind., 347; 44 Mo., 132; Sto. Eq. Jur., [ed. of 1873] § 972, referred to in 46 Mo., 117; 23 Iowa, 577.)

II. The fact that the wife employed her husband in the business being fully explained, is no longer in the case so as to affect plaintiff's right. (33 N. Y., 418; 44 Mo., 343; 6 Penn., 383.)

III. The agreement is good, unless it be shown to be fraudulent. (51 Ill., 417; 39 Barb., 61; 47 Penn., 220, 227; 50 Id., 266; 65 Id., 191.)

In equity the intervention of trustees is not necessary to the validity of a gift from husband to wife, (46 Mo., 81); and such gift may be made by a third party, notwithstanding the insolvency of the husband (8 Paige Chy., 167); and may be used in business for which he may be her agent, etc. (33 N. Y., 518.)

HOUGH, Judge, delivered the opinion of the court.

The complainants are husband and wife, and obtained, in the Circuit Court of Buchanan County, an injunction perpetually restraining the defendant from proceeding to sell under an execution in his favor, and against the husband, certain personal property claimed by the wife, as her separate estate.

It appears from the record, that the complainants were married in 1862, and lived in Atchison, Kansas, and that the husband, who was a baker and confectioner, was then possessed of considerable real estate and personal property; that in the year 1870 he failed in business, and after surrendering all his property, real and personal, for the benefit of his creditors, was still in debt to the amount of twenty-five hundred dollars, and being without the means of supporting his family, his wife, Mrs. Holthaus, who then had three children, went to the house of her step-father, Henry Lipps, in Atchison, who provided for them until March, 1870, when he purchased and put her in possession of a bakery, confectionery and icecream saloon in the city of St. Joseph. This property, which was all personal, cost about seven hundred dollars.

At the time of this gift to his step-daughter, Lipps, who knew that her husband was in debt and insolvent, was careful to inform them both that it was intended as a provision for the support of Mrs. Holthaus and her children, and was for her separate use and benefit, and that neither the property, business nor profits should ever be claimed, interfered with, managed or controlled by the husband. This arrangement was acquiesced in by the husband, and the purchase was made with that understanding, and he afterwards worked in the bakery for his wife, and received a stipulated sum for his services, no part of which earnings of his went into the business conducted by her. These facts distinctly appear, and are not contradicted.

Soon after his failure, Holthaus executed, jointly with his former partner, a note to the defendant, for the sum of one-hundred and forty dollars, for goods purchased by them in their business, several years previously. Sometime in June, 1871, the defendant obtained judgment against the complainant, Emilie Holthaus, on this note, and in August following had an execution issued and levied upon a portion of the property given, as before stated, to Emilie D. Holthaus, by her step-father, Lipps. The defendant offered no testimony.

No questions as to pleadings or evidence are saved in the record, and the case comes before us solely on the propriety of the decree awarding the perpetual injunction.

A court of equity is undoubtedly the tribunal to which a married woman should appeal for the protection of her separate estate from the creditors of her husband, and a decree against the plaintiff in the execution, as sole defendant,...