Mueller v. Kaessmann

• Decision Date: 31 October 1884
• Citation: 84 Mo. 318
• Parties: MUELLER, et al. v. KAESSMANN et al., Appellants.
• Court: Missouri Supreme Court

84 Mo. 318

MUELLER, et al.

v.KAESSMANN et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

This was an action of ejectment by Christian Mueller and Frederika Mueller, his wife, for lot 6 in block 26 in the city of St. Joseph. Defendant, Kaessmann, the tenant, answered, stating that he held under the trustees of the “Evangelical Lutheran St. Peter's Congregation,” a church of which he is pastor. The trustees, who are joined as defendants in the petition, set up that their possession was solely as trustees of said church, which was organized in 1875, mainly through the activity and solicitation of the plaintiffs, who were also members of the church, Christian Mueller being treasurer and trustee; that said Christian Mueller proposed to defendants and their associates to organize the church and promised, if they would so join with him, to buy the property in question and donate it, or its use, to the church, for religious purposes, the defendants to pay two hundred and fifty dollars of the purchase price, which they did, and also to make certain improvements on the property, build a parsonage, and bear the burden of supporting the church. That in compliance on their part, the defendants and their church brethren, in various ways, contributed in money and labor, a large amount, the parsonage was built, the church repaired and fitted up, a pastor called and put in possession, and the regular and customary meetings of such an organization held; that soon after the church was organized, some question being raised about the terms of Christian's promise to donate the church, he gave the church council the following writing:

“ST. JOSEPH, Mo., October 14, 1876.--I, the undersigned, declare hereby that I am ready to give the Evangelical Lutheran St. Peter's Congregation a free deed for the church property and parsonage as soon as the costs for building the parsonage and other debts are paid.

CHRISTIAN MUELLER.”

Whereby plaintiff, Christian, declared he was the owner of said property, and on the faith of said promise the defendants incurred the expenditures aforesaid; that the plaintiff, Christian, advanced, as treasurer of the church society, what was necessary over and above the contributions of defendants, to build the parsonage, all of which was tendered to him before the commencement of this suit, which tender is renewed in the answer. The answer further avers that the plaintiff, Mrs. Mueller, is a mere depositary of the title, the same having been made to her merely for the convenience of her husband; that she paid no part of the purchase price, and knew the purpose for which the property was bought, and was actively engaged with her husband in organizing said church, holding out to all her husband's promised donation as an inducement to join and contribute to the support of the church and improvement of the property. The answer concluded with a prayer for specific performance and for general relief.

Plaintiff filed a general denial, also pleaded the statute of frauds, and averred an offer to return the two hundred and fifty dollar note given for defendants' share of the purchase price. On the trial, plaintiffs, to sustain their action, read in evidence a warranty deed whereby John DeClue and Ellen DeClue, his wife, for the consideration of twenty-two hundred and fifty dollars, on September 23, 1875, conveyed the premises to the plaintiff, Frederika Mueller, the habendum clause being, “to have and to hold the said premises with all the rights, privileges, and appurtenances thereto belonging or in any way appertaining unto the said Frederika Mueller, her heirs and assigns, forever.” This deed was acknowledged in due form and was recorded October 1, 1875.

After proof by plaintiffs of the rental value of the premises, defendants read in evidence the instrument of writing executed by Christian Mueller and recited in the answer and also offered other evidence tending to support the allegations of the answer. The cause was tried by the court sitting as a jury and resulted in a finding and judgment for plaintiffs. The motion for a new trial assigned the usual grounds therefor, and also “that the recovery must be had in the name of plaintiff, C. Mueller, alone, and the female plaintiff being an improper party, the defendant's defence was a complete bar and estoppel to any recovery by him.”

Vinton Pike for appellants.

(1) The trustees having paid a part of the purchase price of the church property, before or at the time of conveyance, a proportionate trust resulted in their favor. They have the admitted equitable title to an undivided 250/2250 (1/9) of the original purchase (4 Kent's Com. 344-6 [366-7]), notwithstanding the other issues may be decided for plaintiffs. (2) This title gives them the right to possession of their undivided portion, and cannot be destroyed or taken away by a tender back of the consideration paid for it. But no tender was made; the allegation in the reply was not sustained; for aught the court can know Ludwig Mueller still retains the note, or has collected it. Mohan v. Waters, 60 Mo. 170; Pratt v. Morrow, 45 Mo. 404; Kerr v. Bell, 44 Mo. 120. (3) Plaintiffs concede they ought not to recover without returning something, and their offer has not been made good. (4) The defendants took possession under a parol gift and made valuable improvements. There is no material difference between a sale and a gift. Tyler v. Eckhart, 1 Binney 378; Halsa v. Halsa, 8 Mo. 303; Bowles v. Waltham, 54 Mo. 264; Rumbolds v. Parr, 51 Mo. 598. (5) Putting the title in Mrs. Mueller's name does not affect the right of defendants. “Coverture will not be allowed to operate as a sword instead of a shield.” Barnum v. Bobb, 68 Mo. 619; Leahey v. Leahey, 11 Mo. App. 413. (6) Mrs. Mueller was bound by the acts and promises of her husband. Wilkerson v. Allen, 67 Mo. 502.

Woodson, Green & Burnes, and Judson & Motter, for respondents.

(1) The evidence is clear that long before the parsonage house was built or contracted for the legal title to the property in suit was vested in the female plaintiff by deed duly recorded in the recorder's office of Buchanan county; that there is no pretense that said female plaintiff ever agreed at any time to convey the property to the church. Certainly her husband had no power to bind her to make a conveyance; even if he had attempted to do so, the recordation of the deed from DeClue to her imparted notice to everybody of her claim to and ownership of the property. 2 Wag. Stat., 935, sec. 14; Warnell v. Kern, 51 Mo. 150; Clark v. Rynex, 53 Mo. 380; Whitney v. Stewart, 63 Mo. 360. (2) The evidence, all taken together, shows, most satisfactorily, that Christian Mueller only agreed to give the property to the church when the church refunded to him the purchase money paid to DeClue for the property. There is no claim on the part of appellants that this money was ever paid or tendered to him. (3) The evidence shows that the church paid no considerable part of the cost of the parsonage. Mueller paid the note for two hundred and fifty dollars given for putting seats in the church--offered it in evidence upon the trial below, and appellants' own witness stated that it had been paid by Mueller. Appellants' own evidence established the fact that Mueller had paid more than five hundred dollars for erecting the parsonage that cost about six hundred dollars. (4) The evidence offered by the appellants to establish Christian Mueller's promise to convey the property, is too contradictory and unsatisfactory to authorize the court to act upon it. 1 Story's Equity Jurisprudence (12 Ed.) sec. 767. (5) But even if it should be conceded for the purposes of this argument, that C. Mueller did have an agreement with the church that he, upon certain conditions, would convey the property, as contended for by appellants, we hold that they have wholly failed to show that the conditions have been complied with. (6) There is no pretense that Christian Mueller was in debt at the time he gave the property to his wife, and directed the deed to it to be made to her by DeClue; or, that it was done to hinder, delay or defraud creditors. (7) Not only did the deed of record to Mrs. Mueller impart notice of her ownership of the property to everybody, under our statutes, but the evidence shows that in the church meetings and among the members of the church, the title to the property was questioned, and they were thus put upon inquiry as to the title.

SHERWOOD, J.

I. Mrs. Mueller being seized of the fee in the land, having no separate estate therein, her husband was powerless to bind, charge or convey the land except by a deed duly executed and acknowledged in conjunction with his wife. This point, which arises on the provisions of the statute (R. S., 1879, sec. 3295), has been uniformly and frequently ruled in this way by this court, ever since the statute was first enacted. 1 Wag. Stat. 935, sec. 14; Wannall v. Kem, 51 Mo. 150; Clark v. Bank, 47 Mo. 17; Clark v. Rynex, 53 Mo. 380; Silvey v. Summer, 61 Mo. 255; McBeth v. Trabue, 69 Mo. 642; Bartlett v. O'Donoghue, 72 Mo. 563; Goff v. Roberts, 72 Mo. 570; Hord v. Taubman, 79 Mo. 101.

II. And because Mrs. Mueller had no separate estate in the land, any promise made by her, if she made any, could not affect, nor have any effect on, her legal or equitable interest in the land; and this owing to her common law marital disability. Shroyer v. Nickell, 55 Mo. 264; Whitely v. Stewart, 63 Mo. 360; Hord v. Taubman, 79 Mo. 101; Bagby v. Emberson, 79 Mo. 139; Meier v. Blume, 80 Mo. 179; Atkison v. Henry, 80 Mo. 151.

For the reasons aforesaid, no specific performance could be decreed against her, or against her husband, and, therefore, judgment affirmed.

All concur.

On Rehearing.

SHERWOOD, J.

This cause has been re-argued. Two points are urged why a different result should have been reached in the original opinion. The...