McGuire v. Allen

• Citation: 18 S.W. 282,108 Mo. 403
• Parties: McGuire, Administrator, v. Allen, Appellant
• Decision Date: 22 December 1891
• Court: Missouri Supreme Court

18 S.W. 282

108 Mo. 403

McGuire, Administrator, v. Allen, Appellant

Supreme Court of Missouri

December 22, 1891

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

J. C Wallace and Wash. Adams for appellant.

(1) By the common law husband and wife are one person, and that person is the husband. A married woman under that law cannot legally make, indorse or accept notes or bills, as acting for herself. 1 Pars. on Notes & Bills [2 Ed.] p. 78. (2) The common law has been modified by statute in this state so that with reference to her property, real and personal, a female married or single, is now on full equality with a male except in a few particulars defined by statute; save in this respect the difference in sex is utterly immaterial. Blair v. Railroad, 89 Mo. 383; Brown v. Bowen, 90 Mo. 190; Morrison v. Thistle, 97 Mo. 601. (3) Even if the court should hold that the wife cannot transfer to her husband any of her statutory separate estate except by writing, yet the case below was wrongly decided because the blank indorsement by the wife of the check in controversy was a sufficient writing under the statute. First. A bank check is the appropriation of the amount of money therein named to the holder. Chouteau v. Rouse, 56 Mo. 65; Priest v. Way, 87 Mo. 30, 31. Second. The indorsement in blank by Mrs. Allen and delivery to her husband vested title in him. "A blank indorsement constitutes by itself a complete and perfect transfer of the interest in the bill, and without the addition of any other words will vest the right of action and all other rights in the transferee and subsequent holders, though, if the transferee were a mere agent, his principal may interfere." Chitty on Bills, 229, 230; Moore v. Pendleton, 16 Ind. 481; Palmer v. Bank, 78 Ill. 380; B. Co. v. Bailey, 18 La. Ann. 676; Ex parte Two Good, 19 Vesey, 229; Odell v. Presbury, 13 Mo. 330. (4) "Those things which the law implies respecting a blank indorsement, viz.: That the title to the instrument and its contents are transferred, and that the transferee assumes the obligation of an indorser, are as much part of the indorsement as though written in express terms. What is implied in an express contract is as much a part of it as what is expressed." Bishop on Con. [Enlarged Ed.] secs. 241-255. "Undoubtedly necessary implication is as much a part of an instrument as if that which was so implied was plainly expressed." Hudson Co. v. Coal Co., 8 Wall. 276. (5) Parol evidence of the declarations of Mrs. Allen was admissible for the following reasons: First. Because they were declarations against interest. Second. They tended to show she indorsed and delivered the check to her husband. Third. They tended to show, if this were at all material, that the gift was her voluntary act, and not the result of undue influence. Smith v. Wilton, 69 Mo. 458; Wynn v. Cory, 48 Mo. 346; Dickerson v. Chrisman, 28 Mo. 134; Robb v. Schmidt, 35 Mo. 290; Anderson v. McPike, 86 Mo. 293; Cavin v. Smith, 24 Mo. 221.

W. J. Ward, also, for appellant.

(1) A blank indorsement of a check or note vests in the holder a prima facie title of ownership to sell it and dispose of it as he pleases. Odell v. Presbury, 13 Mo. 331; Bank v. Bank, 71 Mo. 183; Sterling v. Bender, 7 Ark. 201; Wilkinson v. Nicklin, 2 Dall. 396; McDonald v. Bailey, 14 Me. 101. (2) The usual way that negotiable paper is transferred is by writing the payee's name in blank upon it. 1 Daniels on Negotiable Ins. [3 Ed.] sec. 688b.

John N. Southern and Gates & Wallace for respondent.

(1) Under Revised Statutes, 1879, section 3296, in order to convey the title from the wife to the husband she must: First. Give her assent. Second. The assent must be express (not implied). Third. The terms of the assent must be set out. Fourth. The assent must be in writing. Fifth. The assent must give full authority to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit. (2) It was the obvious intent of our legislature to restrict within the narrowest limits the power of the husband over the wife's personalty, and he cannot sell, incumber or otherwise dispose of the same for his own use and benefit, except by the express assent of his wife in writing, setting forth the terms and the full authority to so dispose of it. Nothing can be implied; nothing which is omitted can be supplied by parol. Boughton v. Brand, 94 Mo. 169; Rodgers v. Bank, 69 Mo. 560; McCoy v. Hyatt, 80 Mo. 130; Gilliland v. Gilliland, 96 Mo. 522; Blair v. Railroad, 89 Mo. 383. (3) Where a statute designed to protect the wife points out any particular mode of transferring her property, that mode must be followed. Gilliland v. Gilliland, 96 Mo. 522; Parker v. Wimberly, 78 Ala. 64; Beene's Heirs v. Randall's Heirs, 23 Ala. 514; Montgomery v. Scott, 61 Miss. 409; Jones v. Fisk, 9 S. & M. (17 Miss.) 144; Simms v. Ray, 96 N.C. 87; Wingo v. Parker, 19 S.C. 9; Briggs v. Titus, 7 R. I. 441; Nissley v. Heisey, 78 Pa. St. 418; Huffman v. Huffman, 118 Pa. St. 58. (4) An indorsement in blank by a person sui juris is at once a transfer and a contract; it is an irrevocable authority in anyone to fill up the blank, and makes the paper payable to barrier and negotiable by delivery. Benj. Chalmers, Bills and Notes, p. 126; Randolph, Com. Paper, sec. 16; Hunter v. Hempstead, 1 Mo. 67. At common law a married woman could not validly indorse a note or check unless her husband consented, when it became his act. Evans v. Secrist, 3 Ind. 545; Bank v. Joy, 41 Me. 568; Stevens v. Beals, 10 Cush. 291; Mudge v. Bullock, 83 Ill. 22; Menkins v. Heringhi, 17 Mo. 297; McLean v. Weidmeyer, 25 Mo. 364. And the wife is not bound by the contracting part of the indorsement in the absence of enabling statutes, as anyone not laboring under a disability would be. Moreau v. Bronson, 37 Ind. 195; Flanders v. Abbey, 6 Biss. 16; Phillips v. Wicks, 45 How. Pr. 477. (5) The indorsement to the defendant of the check was not such a writing as gave him full authority to sell, incumber or otherwise dispose of it for his own use and benefit. It was an equivocal act consistent with several other interpretations, and did not constitute such an unequivocal assent in writing as the law requires. Franc v. Nirdlinger, 41 Oh. St. 298; Farmer's Ex'r. v. Farmer, 39 N.J.Eq. 211; Harmon v. Renfrew, 84 Mo. 332; Clark v. Clark, 86 Mo. 114; Pike v. Baker, 53 Ill. 163; Drury v. Briscow, 42 Md. 154.

Thomas, J. Barclay, J., dissents.

OPINION

IN BANC.

Thomas J.

Black, J., delivered the opinion on behalf of the majority of the judges of division number 1 in this case, as follows:

"William McGuire, as the administrator of the estate of Mrs. Susan Allen, brought this action against William Allen, the husband of the deceased, to recover the proceeds of a check.

"The facts are these: Mrs. Allen was a daughter of Robert Daniels who died in 1883, and his heirs constituted Mr. Anderson a trustee to settle the estate. On August 28, 1883, the trustee paid Mrs. Allen $ 4,556 on account of her distributive share of her father's estate by a check payable to her order. The trustee handed this check to her husband, the defendant and he took it home and gave it to her. She signed her name on the back of the check and then gave it back to him. He deposited the same in his own name and used the proceeds. She died in 1886.

"The evidence shows that Mrs. Allen, at the time she handed the check to her husband told him to deposit it in his own name so McGuire and the Parker heirs could not get the money. McGuire, who is the administrator suing, was her son by a former marriage, and the Parker heirs were children of her deceased daughter by such former marriage. There is much other evidence to the effect that Mrs. Allen stated on several occasions that she had given the check or money to the defendant, that he had been a good husband to her, that the money belonged to him, and he could do with it as he pleased, that McGuire had not treated her right, and she did not want him to have any of it. Some of these statements were made at a time when the defendant was using part of the money in building a house upon his own land, as we understand the evidence.

"Section 3296, Revised Statutes, 1879, first declares that any personal property including rights in action, which may have come to a married woman during the coverture by bequest, gift, inheritance, etc., shall be and remain her separate property under her sole control, etc., and then provides: 'This section shall not affect the title of any husband to any personal property reduced to his possession, with the express assent of his wife; provided that such personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless, by the terms of said assent in writing, full authority shall have been given by the wife to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit.'

"1. This section of the statute, as has been often said, produced a radical change in the law in respect of the right of the husband to his wife's personal property. It secured to her her personal property and choses in action free from any claim of the husband, and free from process of law for his debts, except for his debts created for necessaries for the wife and family. As to all her personal property and choses in action she is in effect a feme sole, and the common-law right of the husband to reduce her property to his possession is restricted to the method pointed out in the statute. As said by this court in the case of Rodgers v Bank, 69 Mo. 560, 'to put an end to all investigations, the law plainly requires the assent of...