Meads v. Hutchinson

• Decision Date: 17 October 1892
• Citation: Meads v. Hutchinson, 19 S.W. 1111, 111 Mo. 620 (Mo. 1892)
• Parties: Meads et al. v. Hutchinson et al., Appellants
• Court: Missouri Supreme Court

19 S.W. 1111

111 Mo. 620

Meads et al. v. Hutchinson et al., Appellants

Supreme Court of Missouri, Second Division

October 17, 1892

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

Reversed.

Kagy & Bremermann for appellants.

(1) If the property in question was simply the legal estate of Mrs McFarland, she, by joining her husband, might convey an absolute title thereto. Revised Statutes, 1889, sec. 2396. (2) A mortgage when conforming to the requirements of the statute for the conveyance of her legal estate, made upon property held as her legal estate and to secure her note, is valid, although the note is absolutely void. Wilcox v Todd, 64 Mo. 388; Thornton v. Bank, 71 Mo. 221; Hagerman v. Sutton, 91 Mo. 519; Rines v Mansfield, 96 Mo. 394. And this is the well-settled rule in many other states. Kidd v. Conway, 65 Barb. 158; Newhart v. Peters, 80 N.C. 168; Johnson Co. v. Rugg, 18 Iowa 138; Bank v. Underwood, 54 Conn. 2; Lehndorf v. Cope, 122 Ill. 317; Ellis v. Kenyon, 25 Ind. 136; Van Cott v. Heath, 9 Wis. 516; Haffey v. Carey, 73 Pa. St. 433; 1 Story on Equity, sec. 1399. (3) The note was not essential to the creation of the mortgage lien; the mortgage recites a consideration; the debt became a lien upon the land upon the execution of the mortgage, and even though an action may be barred on the note the lien of the mortgage may be enforced, in the absence of adverse possession, against the land. Worley v. Dryden, 57 Mo. 226; Aull v. Lee, 161 Mo. 160; Booker v. Armstrong, 93 Mo. 49; Lewis v. Schwenn, 93 Mo. 26; Gardner v. Terry, 99 Mo. 523; Benton Co. v. Czarlinsky, 101 Mo. 275; Orr v. Rode, 101 Mo. 387; Tiedeman on Real Property, sec. 310; Jones on Mortgages, sec. 353. (4) The real estate mortgaged, though on the face of the deed it appears to be the legal estate of Mrs. McFarland, was, as a matter of law, her separate estate. She said so in her deed. The notary who took her acknowledgment certifies that she said so at that time. Klenke v. Koeltze, 75 Mo. 239; Wilson v. Albert, 89 Mo. 537; Smyth v. Munroe, 84 N.Y. 354; Kilbourn v. Brown, 56 Conn. 150; Treadwell v. Archer, 76 N.Y. 196; Holtz v. Beldin, 12 Phil. 498; Howell v. Hale, 5 La. 405. (5) No special words are necessary to create a separate estate in a married woman. It may be done without the intervention of a trustee. Martin v. Colburn, 88 Mo. 229; 3 Pomeroy on Equity, sec. 1103; Morrison v. Thistle, 67 Mo. 596; Bank v. Hamilton, 34 N.J.Eq. 158; Turner v. Shaw, 96 Mo. 22. (6) If this land in controversy was the separate estate of Mrs. McFarland at the time she made the mortgage, then all will agree she could mortgage it, even without joining her husband. Turner v. Shaw, 96 Mo. 22. (7) The mortgage deed upon its face shows that the real estate described therein was the separate estate of Mrs. McFarland. This makes a prima facie case, and not a scintilla of evidence is offered to overthrow the case thus made. Kilbourn v. Brown, 56 Conn. 150. (8) We do not say that Mrs. McFarland, being a married woman, would be bound by the doctrine of estoppel, in its ordinary sense, as to her legal estate, but we do say that we have made a prima facie case that this was her separate estate, and if so then she is a feme sole as to it and the doctrine of estoppel does apply. Rannells v. Gerner, 80 Mo. 474; Martin v. Colburn, 88 Mo. 229; Turner v. Shaw, 96 Mo. 22. (9) Though the general rule is that a married woman is not estopped, this rule does not license her to commit a fraud. Her acts and representations, made to deceive others, and which do deceive others to their injury, will preclude her from asserting her claim against those who have acted on her representations and admissions. Read v. Hall, 57 N.H. 482; Hammond v. Corbett, 51 N.H. 311; Nixon v. Halley, 78 Ill. 611; Allen v. Allen, 118 Mass. 402; O'Brien v. Hilburn, 9 Tex. 297.

C. O. Tichenor also for appellants.

(1) It is true that, if a woman executes a mortgage upon her separate property to secure a debt of her husband, her property is in the position of a surety. Brandt on Suretyship & Guaranties, sec. 20. But this does not make the sale to the principal a nullity. It gives a right to redeem. The trustee has the right to sell, for the debt is due, and in making the sale the terms of the deed of trust are complied with. The fault is as to the vendee. But whether her property is in such a position or not is a question of fact, and it must be affirmatively established. Gahn v. Niemcenick, 11 Wend. 312; s. c., 3 Paige, 651. (2) It may be shown by parol that she received the money, or that it was obtained for the benefit of her estate. Spear v. Ward, 20 Cal. 675; Dickinson v. Codwise, 1 Sandf. Ch. 214. (3) Where the admission in the consideration clause shows that she received the money, it negatives the idea of other recitals which go to show that she executed the deed of trust as a surety. Spear v. Ward, supra. (4) The recitals in the mortgage in controversy show that it was not a surety for her husband's debt. Gardiner v. Gardiner, 27 Wend. 528. (5) The husband had the right to purchase at the sale under the deed of trust to protect himself against the debt for which he was incidentally liable, and especially if his wife and heirs had the right to redeem.

J. W. Coburn and Sherry & Hughes for respondents.

(1) Appellants admit that the note herein is absolutely void. (2) The note is the principal, the mortgage is the accessory. When the note is paid the mortgage is discharged. Boles v. Wade, 3 Green's Ch. (4 N. J. Eq.) 460. The mortgage is but an incident, attached to the debt, and cannot be detached from the principal. Jackson v. Willard, 4 Johns. Rep. 43; Jackson v. Blodgett, 5 Cow. 206; Hagerman v. Sutton, 91 Mo. 519; Mayes v. Robinson, 93 Mo. 114. The mortgage is collateral to the note, the one is the principal and the other is the incident; when the note is void, the mortgage is void also and cannot be foreclosed. 1 Jones on Mortgages [3 Ed.] sec. 110, p. 84; Bingham v. Potter, 14 Gray (Mass.) 522; Deveny v. Dana, 2 Cush. (Mass.) 160. In an action brought by a mortgagee on a mortgage given to secure a note the defendant may show the same matters in defense that he might show if the action was on the note. 1 Jones on Mortgages [3 Ed.] sec. 110, p. 84; Vinton v. King, 4 Allen (Mass.) 562. (3) A mortgage, like every other contract, must be founded on a sufficient consideration. 1 Jones on Mortgages [3 Ed.] sec. 610, p. 481. It is essential that the mortgage should secure the payment of some debt. Secs. 70, 72. (4) During the life of Sue B. McFarland, her husband, Houston McFarland, had the right to the possession of the land in controversy, and at her death became a tenant for life by curtesy. At the mortgagee's sale he became the purchaser of the land. Redemption by husband of lien on wife's land merely preserves the estate to the wife. 2 Bishop on Married Women [1 Ed.] sec. 292, p. 253; Swisshelm's Appeal, 6 Smith (Pa. St.) 475; Young v. Adams, 14 B. Mon. (Ky.) 127. (5) The note secured by the mortgage herein was dated June 3, 1872. The alleged separate estate of Sue B. McFarland was not acquired until June 25, 1872. The mortgage was not given until June 28, 1872. The promissory note of a married woman not possessed of a separate estate at the time she executed it is a nullity. Bank v. Collins, 75 Mo. 280; Music v. Dodson, 76 Mo. 625; State ex rel. v. Keevil, 17 Mo.App. 144. (6) The quality of the estate conveyed to a married woman must be determined by the deed vesting title in her; and if it contain no words excluding the marital rights of the husband, and apt to describe a separate estate, it is not separate property. Klenke v. Koeltze, 75 Mo. 243; Martin v. Colburn, 88 Mo. 230; Allen v. DeGroodt, 98 Mo. 160; Powell v. Scott, 43 Mo.App. 206. (7) The contract of a married woman is not made valid by the fact that she represented herself to be single at the time she gave it, and thereby obtained the consideration upon which it was given. Keen v. Coleman, 39 Pa. 299; Klien v. Caldwell, 91 Pa. St. 140; Cupp v. Campbell, 103 Ind. 213. (8) The recitals in a deed by a married woman do not estop her or those claiming under her. Crenshaw v. Creek, 52 Mo. 98; Rannells v. Gerner, 80 Mo. 483; Hord v. Taubman, 79 Mo. 101; Meier v. Blume, 80 Mo. 179; Mueller v. Kaessman, 84 Mo. 323. (9) Only party to whom false representation is made can claim estoppel. Bank v. Todd, 47 Conn. 190; Mayenburg v. Haynes, 50 N.Y. 675; Durant v. Pratt, 55 Vt. 270.

OPINION

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 eight and one-half 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 twenty-fifth 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 $ 450, 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,...