Mason v. Gitchell

• Decision Date: 04 February 1889
• Citation: 97 Mo. 134,10 S.W. 608
• Parties: MASON, Sheriff, v. GITCHELL et al.
• Court: Missouri Supreme Court

10 S.W. 608

97 Mo. 134

MASON, Sheriff, v. GITCHELL et al.

Supreme Court of Missouri.

February 4, 1889.

TAXATION — TAX SALE — WIFE'S SEPARATE PROPERTY — RIGHT TO SURPLUS.

Under Rev St. Mo. 1879, § 3295, providing that the rents, etc., and proceeds of, and the husband's interest in, the wife's realty, shall be exempt from seizure for his debts, except debts for family necessaries, and that no conveyance thereof by the husband shall be valid unless the wife joins, the husband's interest in the wife's land does not pass by a sale under a judgment in a suit for taxes, to which the husband, but not the wife, is a party; and, as against the purchaser at such sale, the wife is entitled to the surplus arising from a subsequent tax sale of the land. Following Gitchell v. Messmer, 87 Mo. 131.

Appeal from St. Louis circuit court; W. H. HORNER, Judge.

Bill of interpleader by I. M. Mason, sheriff, against Charles E. Gitchell and Lina V. Newman. Gitchell appeals. Rev. St. Mo. 1879, § 3295, provide: "The rents, issues, and products of the real estate of any married woman, and all moneys and obligations arising from the sale of such real estate, and the interest of her husband in her right in any real estate which belonged to her before marriage, or which she may have acquired by gift, grant, devise, or inheritance, during coverture, shall, during coverture, be exempt from attachment or levy of execution, for the sole debts of her husband; and no conveyance made during coverture by such husband, of such rents, issues, and products, or of any interest in such real estate, shall be valid, unless the same be by deed executed by the wife jointly with the husband, and acknowledged by her: * * * provided, such annual products may be attached or levied upon for any debt or liability of her husband created for necessaries for the wife and family, and for debts for labor or materials furnished upon or for the cultivation or improvement of such real estate."

S. Hermann, for appellant. Joseph S. Dobyns, for Lina V. Newman, respondent.

RAY, C. J.

This is the same case, in another form, as the ejectment case of Gitchell v. Messmer, reported in 87 Mo. 131. In said ejectment suit the plaintiff, Gitchell, claimed title under a judgment recovered in a suit by the collector in 1878, to enforce the lien against the property for unpaid taxes for the years from 1871 to and including 1876, to which Lina V. Newman was not a party, although her husband was. Since the institution of, and during the pendency of, said suit in ejectment by said Gitchell against Messmer, who was the tenant in possession under Mrs. Newman, the collector brought, it seems, another suit for unpaid taxes, for other and subsequent years, the defendants therein being the said Gitchell and said Lina V. Newman, (who are the interpleaders in this cause.) and Socrates Newman, the husband of said Lina V. Newman. Under a judgment duly rendered, and an execution regularly issued thereunder, the lot was sold for the taxes of these...