Kimm v. Weippert

• Decision Date: 31 October 1870
• Citation: 46 Mo. 532
• Parties: THEODORE KIMM, Plaintiff in Error, v. JOHN WEIPPERT AND ELIZA WEIPPERT, HIS WIFE, Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 532

THEODORE KIMM, Plaintiff in Error,

v.JOHN WEIPPERT AND ELIZA WEIPPERT, HIS WIFE, Defendants in Error.

Supreme Court of Missouri.

October Term, 1870.

Error to Second District Court.

Pipkin & Thomas, for plaintiff in error, cited in argument Coates v. Robinson, 10 Mo. 757; Whitesides v. Cannon and Wife, 23 Mo. 457; Claflin v. Van Wagoner, 32 Mo. 252; 2 Sto. Eq., §§ 1400-1; 2 Rop. Husb. & Wife, 246; Hulme v. Tenant, 1 Bro. C. C. 14 and note; Jaques v. M. E. Church, 17 Johns. 581.

Ahloers & Williams, for defendants in error.

I. The Circuit Court below erred manifestly in rendering judgment against Eliza Weippert upon the merits of the case. (1) She had not such a power of disposition over her separate property as to empower her to create charges on the same by the execution of promissory notes. It requires the general and absolute power to dispose of her separate estate to enable a married woman to charge debts by promissory notes upon the same. (Sto. Eq. Jur., §§ 1397, 1399.) The lot 3 being conveyed to Eliza during marriage, without trustees, and the power of disposition being presented in the deed, she can not convey the same or make charges thereon, outside of that power, for her heirs have an interest in the property. (Sto. Eq. Jur., §§ 1391-2.) (2) If Eliza Weippert had such general power by said deed, then the facts and evidence show that she did not charge the promissory notes in question upon her separate property, lot 3 in Windsor Harbor. The intention of a femme covert to bind her separate property for debts contracted by her must be proven, either expressly or by implication. Now, if in the first instance the intention of Eliza Weippert to charge the notes executed against the real estate be implied from the very fact of executing the same, then such prima facie implication is more than sufficiently rebutted and overcome by the evidence given in the case. If a married woman executes a note and does not otherwise secure it, the law may presume that she intends to charge it upon her separate property, but the presumption is only prima facie, and far from being conclusive; it is already, as Story says, a strong case of constructive implication by courts of equity, and the reason of the presumption is that the intention must have been that the estate shall operate some way, and that it can have no operation except as against her separate estate. But in this case it did and could have operated, because the notes operated upon the lots the deed of trust was given on, by which they were secured. (Sto. Eq. Jur., § 1400.)

II. The instruction No. 3 asked by Kimm and given was manifestly wrong. The presumption may be rebutted by parol evidence, and such parol evidence does not vary the notes executed.

WAGNER, Judge, delivered the opinion of the court.

It will be unnecessary to notice in detail the preliminary question raised in regard to the pleadings in this case. That the petition, tested by the rules of scientific pleading, is badly drawn, is unquestionable. But, as the court disregarded that part of it which prayed judgment on the notes, and tried the cause solely on the equities, we are inclined to treat it simply as a petition in equity; and we think that justice will be subserved and the interests of the parties promoted by examining the case upon its merits. The proceeding was in the nature of a bill in equity, to subject the separate estate of the defendant Eliza to the payment of certain notes due and owing to the plaintiff.

From the record it appears that the notes were given in consideration of the purchase of certain lots sold by plaintiff in the town of Kimmswick, Jefferson county, Mo. Some of the purchase money was paid, and the notes were executed for the remainder, signed by both the defendants, they being at the time husband and wife. To secure the payment of the notes a deed of trust was made and delivered, in which both of the defendants joined; and default being made in the payments, the property was sold at trustee's sale, and not bringing enough to satisfy the amount due, this suit was brought to obtain satisfaction of the residue.

It also appears that, at the time the property was purchased from Kimm, the defendant Eliza was possessed of a lot in Windsor Harbor, as her separate estate, but that the plaintiff had no notice of that fact, and this is the property which is now sought to be proceeded against.

The Circuit Court granted the relief prayed for, declared the debt a lien upon the estate, and ordered its sale for satisfaction. This decree was reversed in the District Court, upon a mere question of pleading. The deed conveying the estate to the defendant Eliza contains this clause, viz: “to have and to hold, together with all the rights, immunities, privileges, and appurtenances to the same belonging, unto the said Eliza Weippert, for her sole and separate use and 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. The said John Weippert shall in no event have or obtain any interest or estate in said property by virtue of this deed, but the same shall belong absolutely to the said Eliza Weippert as her own separate and individual property.” It is now contended that as the deed conveying the separate estate to Mrs. Weippert provides that she may dispose of it by joining with her husband in a conveyance for that purpose, she is incapable of disposing of it in any other way; and it is further insisted that in no event is the separate estate chargeable for the debt. The deed vests in Mrs. Weippert the full, absolute, and complete title, and gives her the entire ownership, and that will be generally held to carry with it the most ample power of disposition. Some of the earlier cases decided that where a particular mode was pointed out in the deed to a married woman, by which she might convey her separate estate, she was restricted and could convey by that mode only. Chancellor Kent was of the opinion that the power of disposition of the separate estate of the wife by her is not absolute, but only sub modo -- to the extent of the power given her by the instrument -- and if the instrument points out a particular manner of disposition, then no other can be adopted, although there is no express prohibition of any other mode; and there are other authorities of the same purport: (Jacques v. M. E. Church, 3 Johns. Ch. 77; Lancaster v. Dolan, 1 Rawle, 231; Thomas v. Farwell, 2 Whart. 11; Morgan v. Elam, 4 Yerg. 375; Rogers v. Smith, 4 Penn. 93.) But the later, better, and prevailing opinion is, that a femme covert is absolutely a femmesole with respect to her separate estate, when she is not specially restrained, by the instrument under which she acts, to some particular mode of disposition; and although a particular mode of disposition is pointed out, it will not preclude her from adopting any other mode of disposition, unless there are words restraining her power of disposition to the very mode pointed out. (Jacques v. M. E. Church, on appeal, 17 Johns. 548; Vizonneau v. Pegram, 2 Leigh, 183; West v. West, 3 Rand. 373; Whitaker v. Blair, 3 J. J. Marsh. 239; Strong v. Skinner, 4 Barb. 546-53; Machir v. Burroughs, 14 Ohio St. 519; Leaycraft v. Hedden, 3 Green's Ch. 512.) When the leading case of Jacques v. M. E. Church, supra, was in the Court of Errors, where all the law judges concurred in reversing the judgment of the chancellor, Spencer, C. J., declared that the decisions fully established, “that a femme covert, with respect to her separate estate, is to be regarded in a court of equity as a femme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate;” and “that the established rule in equity is, that when a femme covert, having separate property, enters into an agreement, and sufficiently indicates her intention to effect it by her separate estate, a court of equity will apply it to the satisfaction of such an engagement.” And Platt, J., considered the rule to be “that a femme covert, having a separate estate, is to be regarded as a femme sole as to her right of contracting for and disposing of it. The jus disponendi is incident to her separate property, and follows, of course, by implication. She may give it to whom she pleases, or charge it with the debts of her husband, provided no undue influence be exerted over her; and her disposition of it will be sanctioned and enforced by a court of equity without the assent of her trustee, unless that assent be expressly made necessary by the instrument creating the trust. And the specification of any particular mode of exercising her disposing power does not deprive her of any other mode of using that right, not expressly or by necessary construction negatived in the devise or deed of settlement.” In the instrument we are now considering there is no restriction or limitation. There are affirmative words showing that the wife may convey by joining with her husband, but there is nothing to indicate that it was intended that she should be restrained to that particular mode. As the absolute title was cast upon her, the jus disponendi accompanied it; and in the absence of negative words limiting her power in regard to the manner and means to effect a charge or disposition, I am of the opinion that it was entirely competent for her to encumber or sell in any way she saw proper. Did her signing the notes in connection with her husband evince an intent to charge her separate estate? The ruling of this court has been that, where a married woman executed a promissory note jointly with her husband, although it did not appear on what account the note was executed--whether for the benefit of the wife or of the husband, or for...