McCollum v. Boughton

• Citation: 132 Mo. 601,34 S.W. 480
• Parties: McCOLLUM v. BOUGHTON.
• Decision Date: 03 March 1896
• Court: United States State Supreme Court of Missouri

34 S.W. 480

132 Mo. 601

McCOLLUM v. BOUGHTON.

Supreme Court of Missouri.

March 3, 1896.

EJECTMENT — EQUITABLE DEFENSE — SURETIES ON NOTE — MORTGAGE OF WIFE'S SEPARATE ESTATE.

1. Under Rev. St. 1889, § 2050 (providing that defendant may set forth by answer as many defenses as he may have), in ejectment, defendant may set up the equitable defense of contribution.

2. Under the married woman's act, a wife can bind her separate estate only in the precise method authorized by the law; and her husband cannot, in his own right or as agent, affect any contract so made by her.

3. Where a mortgage of a wife's separate estate recites that it is given to secure a note of her husband and others, if the same remains "due and unpaid," she is not bound as cosurety, but only as a subsequent surety.

4. Where a wife gives a mortgage on her land to secure the note of her husband and others, and, on foreclosure of the mortgage, one of the parties buys the land, his purchase inures to the benefit of the wife.

Brace, C. J., and Gantt and Burgess, JJ., dissenting.

On rehearing. Denied.

For former opinion, see 33 S. W. 476.

SHERWOOD, J.

For lots 5, 6, and 7 in block 28 in the town of Dexter, McCollum brings ejectment against Mrs. Boughton, a married woman, who, it appears, lived upon the lots, her husband having left her and disappeared in 1890. In 1877 she bought the lots with money in part obtained from her mother's estate, and in part from the proceeds of her own labor. These lots, it is asserted by counsel for defendant, belonged to Mrs. Boughton's "general estate." It was her home, she having built a house thereon in 1880 at a cost of $1,500, of which she furnished $900, and her husband $700, at a time when he was free from debt. This action had its origin in a deed of trust executed on the 24th day of August, 1888, on the lots aforesaid, by George N. Boughton and Mrs. Boughton (defendant), his wife. This deed of trust was in ordinary form, with George N. Boughton and his wife, of the first part, E. M. Ladd, of the second part, and Chas. D. Matthews, of the third part, and was given to secure the following note: "$1,500. Sikeston, Mo., August 24, 1888. Two years after date, we promise to pay to C. D. Matthews or order fifteen hundred dollars ($1,500), for value received, with ten (10) per cent. per annum thereon from date, which interest shall be due and payable annually; and, if interest is not paid annually, the same shall become a part of the principal, and bear interest at the same rate. [Signed by] Geo. N. Boughton, Thos. J. Ulen, J. W. McCollum, and E. J. Malone." After the insertion of the note, then follow the usual clauses about the payment of taxes, insurance of the buildings, etc. Then this common clause occurs: "Now, if said promissory note shall be paid at maturity, and if the covenant aforesaid shall be met and truly kept, and all amounts expended as aforesaid shall be refunded and paid to the said party of the third part, or his assigns, by the said party of the first part, or their legal representatives, then the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but if said promissory note, or either or any part of any one of them, shall be allowed to remain due and unpaid, or in case of payment of any amount expended as aforesaid shall not be made, or in case of said covenants or any part thereof shall not be fully kept, then this deed shall remain in force, and the said party of the second part, or in case of his death or absence from the state of Missouri, or failure or refusal to act, then the sheriff of the county of Stoddard, in the state of Missouri, acting as such for the time being, may proceed to sell the property hereinbefore described," etc. This deed was acknowledged by Boughton and wife on the 24th of August, 1888, — the date of the note. The answer of defendant was first a general denial, and then, in substance, sets up that at the time of executing the deed of trust she was, and still is, a married woman, and still the absolute owner, in fee simple, of the property in dispute; that the deed of trust was made to secure the debt contracted and promissory note of plaintiff, George N. Boughton, Thomas J. Ulen, and E. J. Malone, for the sum of $1,500; that defendant was not a party to said contract and promissory note so made and executed by said parties aforesaid; that no part of the consideration realized out of the deed of trust was received by her; that, at most, she was but a guarantor for the makers of said note, and the deed of trust was only collateral thereto, that plaintiff, as one of the comakers of said note, has paid off the note, and thereby fully released her property; that the sale of the same was without lawful authority, and is a cloud on her title. Then follows a prayer for the cancellation of the deed of trust, etc. In his reply, plaintiff admits that his title rests on the sale under the deed of trust aforesaid, etc.; that such deed was made to secure the payment of the promissory note of George N. Boughton, defendant's husband, for $1,500; that the note became due, and on the 19th of September, 1890, Ladd, trustee, sold the premises and made deed to plaintiff; that plaintiff, Ulen, and Malone were not comakers of said note, but only sureties of George N. Boughton on the same, etc.; that George N. Boughton agreed with them, before they signed the note, that a deed of trust of the premises in dispute was to be made to Matthews to secure payment of the same; that when said parties, plaintiff and others, signed the note as sureties, the deed of trust was already made and executed, and in the hands of George N. Boughton; that it was the express agreement between George N. Boughton, plaintiff, and the other sureties, at the time of signing the note, that said sureties were not to pay any part of it until Matthews had first exhausted his remedies by selling the premises conveyed by the deed of trust, and applying the proceeds on the note; that it was upon the faith of such agreement that plaintiff and the other sureties were induced to sign the note; that George N. Boughton failed to pay the note, and in consequence the premises were sold, and plaintiff became the purchaser, etc. The reply then admits that defendant is a married woman and had the legal title to the premises, and then denies new matter, etc. At the hearing the common source of title was admitted, and the following evidence, in substance and effect, adduced: The deed of trust, and the deed made by Ladd, trustee, to plaintiff. Plaintiff then introduced his own testimony, tending to support his reply, and to show that an agreement was made between Boughton and himself whereby it was arranged by and between them that Boughton was to get Ulen and Malone to sign the note as sureties, and plaintiff was to sign it also in that capacity, provided that Boughton would secure them on his home place; that on the 24th day of August, 1888, Boughton came, bringing with him the deed of trust already executed, and plaintiff signed the note, which had at that time only the names of Boughton and Ulen on it. Objections were taken to plaintiff's testifying as to any agreement made with Boughton, defendant not being present, and exception saved on its admission. Ulen also gave similar testimony to that given by plaintiff, — that when he signed the note the deed of trust was executed and in Boughton's hands, and only Boughton's name was on the note at the time witness signed his name; and objection was made, as before stated, to a certain portion of it. Defendant testified that she never read the deed of trust, that the note was attached to that deed, and that the signatures to the note were on it when she signed the deed of trust. This is the substance of the evidence, and a sufficiency of the pleadings bearing on the questions at issue.

1. The answer of defendant converted this action at law into a proceeding in equity, and therefore it becomes wholly unnecessary to consider declarations of law given or...