Kinner v. Walsh

• Decision Date: 31 March 1869
• Citation: 44 Mo. 65
• Parties: HUGO KINNER, Defendant in Error, v. JAMES B. WALSH, Garnishee of HENRY HELD, Plaintiff in Error.
• Court: Missouri Supreme Court

44 Mo. 65

HUGO KINNER, Defendant in Error,

v.JAMES B. WALSH, Garnishee of HENRY HELD, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1869.

Error to St. Louis Circuit Court.

The facts sufficiently appear in the opinion of the court.

J. A. Beal, for plaintiff in error.

I. The surplus left after satisfaction of the deed of trust belonged to the heirs of Anna Held, and could not be seized by attachment or execution against Henry Held to pay the debt of Henry Held. These lots belonged to Anna Held before her marriage with Henry Held. By section 14, p. 464, of General Statutes of 1865, the rents, issues, and products of the real estate of a married woman, and the interest of the husband in the property of Anna Held which she owned before marriage, are “exempt from attachment or levy of execution for the sole debts of the husband.” This section also exempts from attachment and execution “all moneys and obligations arising from the sale of such real estate” owned by the wife. The money attempted to be garnisheed on execution arose from the sale of Anna Held's real estate, and the debt was not her debt.

II. The allowing a plaintiff in execution to summon a party as garnishee of defendant in execution contemplates the garnishee being a debtor of the defendant. (8 Mo. 322.) J. B. Walsh did not owe Henry Held a debt. He was trustee, vested with the legal title of Mrs. Held's property, affected with a trust for her heirs.

III. On the death of Anna Held a descent was cast, and her real estate descended to the heirs at law, to-wit: her children; and the sale of the property after her death vested in her children the surplus proceeds of whatever was left. The same rules apply as in the case of a mortgage. (2 Washb. Real Prop. pp. 152, 545, ed. 1868.)

IV. A question might arise whether the husband was entitled to curtesy in the surplus proceeds; if so, how is a creditor of Henry Held to get the curtesy in money? On judgment against Welsh it is an absolute recovery; there is nothing to show that, on the death of Henry Held, Kinner, the plaintiff in the execution, holds the money or remainder for the children of Anna Held. Before Henry Held could get the money for his curtesy, he would be compelled to give security to refund it to the heirs of Anna Held on his death; otherwise, the curtesy would be an absolute estate and ownership of the money, but to be returned on his death. It would be more than usufruct--it would be a total consumption of the money, and the heirs would not be able to reach the money. Curtesy in real estate is the usufruct of the land during the life of the husband; and on his death the land reverts to the heirs or legal owners. In garnishment, the curtesy can not give the money to Kinner and require him to refund it at his death. How are the children of Mrs. Held to get the money after the death of Henry Held? (23 Penn. 231.)Woerner & Kehr, for defendant in error.

I. The debt secured by the deed of trust, having been contracted during marriage, must be presumed to have been contracted for the joint benefit of husband and wife; and it matters not that the notes were signed by the husband alone, for, if signed by the wife, the act on her part would have been nugatory. In Phelps v. Tappan, 18 Mo. 394, it is held that property purchased by the husband during marriage is liable for the debts of the wife contracted before marriage, because it is presumed to be “the fruit of the joint industry of husband and wife.” The debt on which the garnishment was founded was likewise contracted during marriage; hence, for the joint benefit of husband and wife.

II. Section 14, chapter 115, Gen. Stat. 1865, p. 464, has no application to this case, because the section exempts the rents, issues, and products only during coverture. Here coverture has ceased by the death of the wife.

III. The surplus realized belongs to Held absolutely. After the sale the trustee has a surplus in his hands, which the deed of trust directs him to pay “to Henry Held and Anna Held, his wife, or their legal representatives.” Who is entitled to this money? If the interest of Anna Held in the money be regarded as a chattel real, then, the husband having survived the wife, “the law gives him her chattel real, absolutely by survivorship; for he was in possession of the chattel real during coverture by a kind of joint tenancy with the wife.” (2 Kent's Com. 135.) If the right to the money be regarded as a chose in action, which had its inception during the marriage, it undoubtedly passes to the husband, who survives, and may be recovered at the suit of any creditor. (Hockaday v. Sallee's Garn., 26 Mo. 220.) The sale under the deed of trust is a conversion of the realty, and the surplus is personal property. (Leigh & Dalzell on Eq. Conv. pp. 47, 128, 143.)

BLISS, Judge, delivered the opinion of the court.

On the 18th of September, 1865, Henry Held and Anna, his wife, conveyed to Walsh, the garnishee, three separate parcels of land in trust to secure certain indebtedness of Henry Held named in the deed. The agreed statement of facts shows that Anna Held, when the deed was executed, owned in her own right more than half of the land. The deed provided that in the event of a sale to satisfy the debt, the surplus, after its payment, etc., shall be paid to the grantors of the deed or their legal representatives. Anna Held died March 15, 1867, leaving two children. Some of the notes of Henry Held, secured by the deed of trust, maturing, Walsh, the trustee, on the 4th of March, 1868, sold the property, paid up all the notes, the costs, expenses, etc., amounting to $2,969.30, and a surplus of $620.70 remained in his hands.

To reach that surplus, and subject it to the payment of another debt of Henry Held, the plaintiff (Kinner) instituted the present proceedings in garnishment against Walsh, who replies to the interrogatories, setting forth the facts as above stated, and claiming that he holds the money in...