Leete v. State Bank of St. Louis.

• Decision Date: 30 November 1897
• Citation: 42 S.W. 927,141 Mo. 584
• Parties: Leete, Appellant, v. State Bank of St. Louis. (No. 2.)
• Court: Missouri Supreme Court

42 S.W. 927

141 Mo. 584

Leete, Appellant, v. State Bank of St. Louis. (No. 2.)

Supreme Court of Missouri, Second Division

November 30, 1897

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

E. T. & C. B. Allen for appellant.

Noble & Shields and George R. Lockwood for respondent.

(1) The plaintiff must recover, if at all, through the strength of her own title. Stonebraker v. Ford, 81 Mo. 535. (2) That the plaintiff has no title to the bonds in question as against the defendant bank is res judicata in this case. Leete v. Bank, 115 Mo. 184; Dowling v Allen, 102 Mo. 213; Keith v. Johnson, 109 Mo 130; Hickman v. Link, 116 Mo. 127; "The Law of the Case," 42 Cent. L. J. 90 (January 31, 1896); Arnold v. Willis, 128 Mo. 150; Robards v. Murphy, 64 Mo.App. 90; Walton v. Fudge, 63 Mo.App. 56. (3) This court has also decided that the clause in section 6869 (3296, R. S. 1879, with amendments), applies to the separate property of the wife, and not that which the husband has acquired through his common law marital rights. Gabriel v. Mullen, 111 Mo. 119. (4) To construe this statute as appellant asks, would depart from the rule whereby words are given their natural meaning and applied to the subject-matter of the enactment; and would also conflict with the construction this court has already given the act, and indeed, the particular clause mentioned. Straus v. Rothan, 102 Mo. 261; Barton v. Sitlington, 128 Mo. 164.

Sherwood J. Gantt, Macfarlane, Burgess, Robinson, and Brace, JJ., concurring with Judge Sherwood in the said opinion and judgment. Barclay, C. J., dissents.

OPINION

Sherwood, J.

Action of replevin for four bonds. These bonds were bought by plaintiff's husband with funds which came from plaintiff's father's estate. Plaintiff's father died in 1870, testate, and her marriage occurred in 1871, and the bonds were purchased by him in his own name.

This cause, though not to be found in our reports, yet was decided at the same term that a case between the same parties was decided, reported in 115 Mo. 184 (see 21 S.W. 793), and as to the constitutional question involved, is governed by the same considerations as those which prevailed in the former case.

This being so, renders it needless to discuss any question respecting the force and effect of section 6869, supra, since in the view we have taken of the matter, as well now as at a previous time, that section has for constitutional reasons no retrospective effect, and consequently no bearing on the present case. Arnold v. Willis, 128 Mo. loc. cit. 150, 30 S.W. 517.

But aside from the foregoing remarks, plaintiff can not recover in this action for the reason that the legal title to the bonds is not in her, and she is therefore not entitled to the immediate and exclusive possession, and must recover on the strength of her own title and not on the defects in the title of her adversary.

This is elementary law. Turner v. Langdon, 85 Mo. loc. cit. 441, and cases cited; Stonebraker v. Ford, 81 Mo. 532.

For these reasons we affirm the judgment. All concur.

IN BANC.

Per Curiam. -- The foregoing opinion, prepared by Judge Sherwood while this cause was in Division Two of the Supreme Court, is hereby approved and adopted as the opinion of the court in banc. The judgment is accordingly affirmed. Gantt, Macfarlane, B...