Nash v. Virginia F. Norment

• Citation: 5 Mo.App. 545
• Parties: GEORGE NASH ET AL., Appellants, v. VIRGINIA F. NORMENT ET AL., Respondents.
• Decision Date: 16 April 1878
• Court: Court of Appeal of Missouri (US)

5 Mo.App. 545

GEORGE NASH ET AL., Appellants,

v.VIRGINIA F. NORMENT ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Apr. 16, 1878.

1. Where an insufficiently executed chattel-mortgage is given to secure a bona fide debt, and a change of actual possession under the mortgage takes place before any creditor of the mortgageor has acquired rights to the property, the invalidity of the mortgage is immaterial.

2. The contract of a married woman may, by proper proceedings, be made a charge upon her separate estate, but it is not, on that account, a lien upon it.

3. Where a married woman has been abandoned by her husband, but is living with and supporting her child, she is the “head of a family,” within the meaning of the execution law.

APPEAL from St. Louis Circuit Court.

Affirmed.

M. KINEALY, for appellants: Where a married woman carries on business in her own name in this State, equity will pay her business creditors out of her stock in trade.-- Tuttle v. Hoag, 46 Mo. 43; Miller v. Brown, 47 Mo. 507. The chattel mortgage in this case is void.-- Billingsley v. Bunce, 28 Mo. 547; Reed v. Pelletier, 28 Mo. 173; Brooks v. Wimer, 20 Mo. 503; Milburn v. Waugh, 11 Mo. 369.

V. T. CRAWFORD and T. G. C. DAVIS, for respondents.

BAKEWELL, J., delivered the opinion of the court.

This is a bill in equity to set aside a mortgage upon personal property given by a married woman, and to subject the proceeds of the property to the payment of an alleged indebtedness by the married woman to plaintiffs. The defendants were the married woman and her husband, the mortgagee, and the firm of auctioneers by whom the property had been sold by direction of the parties to the mortgage, and who had the proceeds. The auctioneers having paid the money into court, the proceeding was dismissed as to them.

It appears from the pleadings and evidence in the case that, in March, 1876, Virginia F. Norment received some money from her father's estate, he having died in Louisiana; that at that time she purchased with this money the stock and good-will of a retail grocery store in St. Louis; that her husband carried on the business in her name; that in April, 1876, the goods for which plaintiffs are seeking to obtain payment in this action, consisting of a bill of groceries, amounting to $144, were purchased by her husband in her name; that in May, 1876, she borrowed of her co-defendant Simpson, at the request of her husband, $200, for which she gave her note and executed and acknowledged a mortgage upon the stock in the store. This mortgage provided that she might retain possession and trade, and must keep up the stock, and that the goods replacing those sold in the course of trade should be subject to the mortgage. Mrs. Norment's husband abandoned her and her child. She could not pay the rent of the store, and herself and the goods were about to be turned into the street by the landlord, when, at her request, Simpson, the mortgagee, paid her rent, about $30, and took possession under the mortgage, and had what remained of the stock taken to an auction store, where it was sold for the sum...