Maguire v. Maguire

• Decision Date: 29 March 1877
• Parties: ANGELINE MAGUIRE et al., Respondents, v. JOHN MAGUIRE et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 458

ANGELINE MAGUIRE et al., Respondents,

v.JOHN MAGUIRE et al., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 29, 1877.

1. A nunc pro tunc order extending the lien of a judgment to a married woman's separate estate, made after the lapse of several terms of court, and without notice to the opposite party, is illegal, and will be set aside in a proceeding instituted for that purpose.

2. Where there is a written contract, in order to bind the separate estate of a married woman it must appear from the contract itself that she intended that it should be bound. Such intent cannot be proved by oral testimony.

APPEAL from St. Louis Circuit Court.

Affirmed.

W. V. N. Bay, for appellants, cited: 2 Story's Eq. Jur., sec. 1400; 39 Ga. 41; 44 Ala. 338; 46 Miss. 114; Whitesides v. Cannon, 23 Mo. 457; Doe v. Perkins, 3 Durnf. &E. 749; Story's Eq. Pl., 8th ed., 402, sec. 428.

Martin & Lackland, for respondents, cited: Mann v. Schoer, 50 Mo. 306; Kimm v. Weippert, 46 Mo. 532; Emerson v. Whittlesey, 55 Mo. 254.

BAKEWELL, J., delivered the opinion of the court.

It appears from the pleadings and evidence that Angeline Maguire, the plaintiff, wife of defendant John Maguire, on May 1, 1858, owned a piece of land on the Bellefontaine Road, fronting 320 feet, by a depth, eastwardly to Ninth Street, of 300 feet, which was held by trustees to her sole and separate use. On the date last mentioned she executed a note, together with her husband, to Oliver D. Filley for $8,000, payable three years after date, with interest at 10 per cent., payable annually. On the same day she executed a written instrument directed to her trustees, and authorizing them to execute a deed of trust to Filley for a portion of said tract of land fronting 125 feet on Bellefontaine Road; and on the same day she, together with her husband and her trustees, executed and delivered a deed of trust to Filley to secure said note, the property described in said trust being the southern 125 feet of the entire tract of 320 feet owned by Mrs. Maguire. This deed was acknowledged on May 17, 1858, and recorded next day.

On April 26, 1871, Mr. Filley commenced proceedings in the Circuit Court to subject the whole of the separate estate of Mrs. Maguire above described to the payment of this note. These proceedings were instituted against John Maguire and Mrs. Maguire and her trustees. The petition sets forth the execution of the note, and says that the money was borrowed by Mrs. Maguire and used by her for the improvement of her separate estate, and asks to have the whole tract of 320 feet subjected to the payment of the note and interest. Nothing is said about the deed of trust. The defendants were all personally served, one of the trustees receiving a copy of the writ. No answer was filed, except an answer of one trustee, who denies knowledge of all the material facts. On the trial all the defendants made default; and the decree, after finding all the other main facts as alleged in the petition, gives judgment against John Maguire for $22,800, to bear interest at 10 per cent., and finds that Angeline Maguire has a separate estate in the southern 125 feet of the tract of 320 feet, and directs that the southern 125 feet be sold to pay the judgment, unless it is satisfied, on demand, by her.

This decree was entered on October 30, 1872. On March 9, 1874, seven terms of the Circuit Court having intervened, on motion of plaintiff Filley, filed February 26, 1874, and without any notice to defendant Angeline Maguire, or her trustees, the original entry of judgment was amended, and a nunc pro tunc entry made extending the lien of the judgment over the whole tract of 320 feet owned by Mrs. Maguire, and directing its sale.

Of this entry of judgment Mrs. Maguire was entirely ignorant until June, 1874, when she at once commenced the present suit to set aside the nunc pro tunc entry and restore the original judgment.

On the trial Mrs. Maguire testified that the reason she did not appear and defend the original suit of Filley against her was that, shortly after the service of process, she called on Filley to inquire about it, and he then informed her that he brought suit merely to prevent his claim being barred by the statute of limitations; that she never saw the petition, and was surprised when she heard that judgment was rendered against her; that she had no notice of the nunc pro tunc entry; that she and her husband occupy separate apartments in the same house, and are not on speaking terms.

J. G. McClelland testified that he examined the title of Mrs. Maguire's property at her request, for a loan of $5,000, shortly before the nunc pro tunc entry, and found and reported the lien on 125 feet only.

Amos H. Shultz, brother of Angeline Maguire, and one of the trustees of her separate estate, swore that, prior to the entry of judgment against Mrs. Maguire, he had many conversations with Filley as to the suit, and understood him to say that he did not wish to disturb or annoy Mrs. Maguire; that he had brought suit to prevent the statute of limitations from barring his claim, and did not expect to take judgment against her. He seemed very friendly to Mrs. Maguire, spoke kindly of her, and said that he had tried to get her to sign a paper to prevent the statute from barring his claim, but she refused. After the judgment, witness called upon Mr. Filley for an explanation, who told him that he desired to save himself from being barred of his lien on the property by the statute. Mr. Filley did not say what lien, and witness supposed he meant the lien of the deed of trust on the 125 feet. He...