Meads v. Hutchinson

• Decision Date: 01 July 1892
• Citation: 19 S.W. 1111,111 Mo. 620
• Court: Missouri Supreme Court
• Parties: MEADS et al. v. HUTCHINSON et al.<SMALL><SUP>1</SUP></SMALL>

19 S.W. 1111

111 Mo. 620

MEADS et al. v. HUTCHINSON et al.¹

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

MORTGAGE BY WIFE FOR HUSBAND'S DEBT — EJECTMENT — TITLE TO SUPPORT.

1. Under Rev. St. 1889, § 2396, which empowers a married woman to convey her real estate, a mortgage executed by a husband and wife on the latter's land not held to her separate use, to secure a debt of the wife, is valid, though the debt was evidenced by a void note of the wife.

2. Where the owner of a life estate purchased the property on a mortgage sale, and then conveyed the same, the remainder-men cannot maintain ejectment against the purchaser, though the interest obtained under the mortgage sale was subject to their right to redeem by contributing their share of the amount paid.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Ejectment by Maggie Meads and another against Emma P. Hutchinson and others. Plaintiffs had judgment, and defendants appeal. Reversed.

Kagy & Bremermann and C O. Tichenor, for appellants. J. W. Coburn and Sherry & Hughes, for respondents.

MACFARLANE, J.

Action of ejectment commenced August 1, 1888. Petition in the usual form, and answer a general denial. The land plaintiffs seek to recover is lot 11, and 8½ feet off the south side of lot 12, block 16, Peery place, in Kansas City. They claim title as heirs at law of Sue B. McFarland. George G. Rounds, the common source of title, on the 25th of June, 1872, conveyed the land to Sue B. McFarland, then wife of Houston McFarland, by deed of general warranty. This deed created no separate estate in the grantee. On June 3, 1872, the said Sue B. McFarland alone executed and delivered to John E. McFarland a note for $450; and on June 28, 1872, she and her husband executed and delivered to the said John E. McFarland a deed of mortgage conveying to him said land. This deed recited that it was made "for and in consideration of the sum of four hundred and fifty dollars to us in hand paid by John E. McFarland;" and was conditioned that "if the said Sue B. McFarland, her executors and administrators, shall pay the sum specified in said note, and all the interest that may be due thereon," then the conveyance to be void. In default of payment, power was given the mortgagee to sell and convey the property. Sue B. McFarland died on March 8, 1877, leaving her husband, Houston McFarland, and her two children, then minors, — Maggie, who married Arthur C. Meads, and Mary, who married Clinton Cockrill. This suit was commenced in the name of these children. On June 13, 1878, after the death of Sue B. McFarland, John E. McFarland sold the land under the power of sale contained in said mortgage, complying with all the terms and conditions of the deed. The said Houston McFarland bought the same, to whom a deed of conveyance, in due form, was made. Houston McFarland conveyed to the grantors of defendants. Houston McFarland died in 1888, and Maggie Meads has died since the institution of this suit, leaving her coplaintiff her sole heir at law. Upon the trial the court refused to admit in evidence the said mortgage, refused all declarations of law asked by defendants giving effect to the mortgage and the sale thereunder, and upon the evidence found for the plaintiffs, and judgment was rendered accordingly, from which defendants appealed. It will be seen that the correctness of the judgment of the circuit court depends upon the legal effect to be given to this mortgage, and to the deed of the mortgage to Houston McFarland.

1. Under our statute concerning the conveyance of real estate, (section 2396,) a married woman, when all the conditions of the statute have been complied with, has as complete and unlimited power to pass the title to her real estate by deed as one under no disability whatever. She will be estopped by her covenants "so far as may be necessary effectually to convey from her and her heirs all right, title, and interest expressed to be conveyed therein." So it has been held by a number of decisions of this court, some of them quite recent, that a married woman, when conforming to the requirements of the statute, has the unquestioned power to make a valid mortgage upon her real estate which is not held to her separate use, though the debt or liability secured thereby is that of her husband. Wilcox v. Todd, 64 Mo. 388; Thornton v. Bank, 71 Mo. 221; Hagerman v....