Newman v. Newman
| Decision Date | 28 November 1899 |
| Citation | 54 S.W. 19,152 Mo. 398 |
| Parties | Newman v. Newman, Appellant |
| Court | Missouri Supreme Court |
Rehearing Granted 152 Mo. 398 at 415.
Appeal from St. Louis City Circuit Court -- Hon. Leroy B. Valliant Judge.
Reversed and remanded.
Noble & Shields for appellant.
(1) This action should, on plaintiff's theory, and as the court has found that the agreement and deeds of September 1889, were void, have been brought against the heirs of Socrates Newman, as well as against the trustee under his will. (a) His will could not devise what he absolutely had no title to, as the decree, if valid, determines. (b) The Roger's deed was to the trustee and his heirs, and those heirs were necessary parties. (c) Without the heirs as parties, the court was without jurisdiction to vest title in a new trustee, as it does in the Mississippi Valley Trust Company. Ewing v. Shannahan, 113 Mo. 188; Hook v. Dyer, 47 Mo. 214. (2) The quadrilateral contract of September 16, 1889, was in substance with Lewis E. Newman alone, and was valid when made, and was completely performed by him. (a) The evidence shows clearly it was William's money, or the proceeds of William's property, that paid off the then existing deed of trust. (b) The presumption of the law is, that William furnished the money, even if paid by hand of the wife, and notwithstanding the statute in relation to married women. Seitz v. Mitchell, 94 U.S. 580; Weil v. Simmons, 66 Mo. 617; Sloan v. Terry, 78 Mo. 626; Crook v. Tull, 111 Mo. 290; Patton v. Bragg, 113 Mo. 601. (c) By this agreement there was a complete and executed novation of the debt whereby William A. Newman and the plaintiff were legally released from their obligations to Socrates Newman and Lewis E. Newman respectively, and Lewis became bound to Socrates for that part due him. Black v. Paul, 10 Mo. 103; Edgell v. Tucker, 40 Mo. 523; Garrison v. O'Donald, 73 Mo.App. 621; Brown v. Croy, 74 Mo.App. 462. (d) The agreement by plaintiff was one by the plaintiff affecting her separate estate, and which she was competent to make, and the admissions and representations in which were of binding force upon her. As to this estate she is to be treated as a feme sole. She is at liberty to dispose of it either for her own benefit or for the benefit of another, as security, or otherwise. Siemers v. Kleeburg, 56 Mo. 196; Turner v. Shaw, 96 Mo. 22. She could bind it as surety as much as she could as a maker of a note. Bank v. Taylor, 62 Mo. 338; Lincoln v. Rowe, 51 Mo. 571; Claflin v. Van Wagoner, 32 Mo. 252; Moeckel v. Heim, 46 Mo.App. 348. It is not necessary that her contract should be in writing. Miller v. Brown, 47 Mo. 504; Lee v. Cohick, 39 Mo.App. 672. Her admissions contained in the agreement are competent and of binding force. Hach v. Hill, 106 Mo. 18. (3) The conveyance of Lewis E. Newman servered the relation of beneficiary and trustee that had existed between plaintiff and Socrates, and thereafter Socrates could deal with the purchaser as to the property, without future accountability. Boehlert v. McBride, 48 Mo. 505; Cotton v. Stanford, 82 Cal. 351; State ex rel. v. Jones, 131 Mo. 207; Johnson v. Johnson, 5 Ala. 90. (a) The conveyance, if it had been directed by the beneficiary to the trustee, would not have been void. State ex rel. v. Jones, 131 Mo. 194; Kirschner v. Kirschner, 113 Mo. 290; Grayson v. Weddle, 63 Mo. 523; Adams' Equity [3 Ed.], pp. 217n and 218n. (b) Proof was necessary by plaintiff to show that the subsequent purchase by Socrates was in pursuance of an agreement previous to the original contract; the presumption was against it, and the burden was on plaintiff. Boehlert v. McBride, 48 Mo. 505.
W. C. & J. C. Jones for respondent.
(1) A trustee for a married woman, where the terms of the trusts expressly exclude marital rights of the husband, can not appropriate the trust property for the payment of a debt due him by the husband. (a) A conveyance under this circumstance is voidable at the election of the trustee without proof of fraud. (b) The debt of the husband is not a valid consideration for such conveyance. (c) False representations, made to the wife to induce the conveyance, that she is her husband's security, constitute a fraud upon the wife. (d) The burden was on defendant to show uberrima fides. This burden defendant failed to carry. Perry on Trusts, sec. 427; Hughes v. Hughes, 87 Ala. 654; Sypher v. McHenry, 18 Ia. 235; Jones v. Smith, 33 Miss. 215; Blanvell v. Ackerman, 20 N.J.Eq. 141; Dodd v. Wakeman, 26 N.J.Eq. 487; Ellicott v. Chamberlin, 38 N.J.Eq. 609; Robins v. Butler, 24 Ill. 387; Dunham v. Miehouse, 70 Ala. 596; Price v. Winter, 15 Fla. 109; Miles v. Wheeler, 43 Ill. 126; Pensamen v. Bleakley, 14 Ill. 15; Borders v. Murphy, 125 Ill. 583; Clark v. Lee, 14 Ia. 426; Andrews v. Hobson, 23 Ala. 235; Campbell v. Walker, 5 Ves. Jr. 680; Bellamy v. Bellamy, 6 Fla. 114; Baker v. Springfield Co., 86 Mo. 75; Roberts v. Mosely, 64 Mo. 507; Turner v. Butler, 126 Mo. 137. (2) Where the trustee of a married woman has made a conveyance of the trust property to his son and the son reconveys to the father, and on the death of the father this property is devised to his executor, an action to establish a trust in the property in favor of the married woman is properly brought against the executor. (3) There is no evidence that Elise Newman was security for the debt of William Newman. The burden to prove this was on the defendant. A married woman can not become personally bound as surety for her husband. She can not bind her separate estate to answer for his debt or default by parol. Moeckel v. Heim, 46 Mo.App. 346; Lee v. Cohick, 39 Mo.App. 675; Miller v. Brown, 47 Mo. 504. (4) Laches can not be imputed to plaintiff. (a) The period of delay is less than the period provided in the statute of limitations, which is the guide. (b) Plaintiff was under the disability of coverture. (c) Delay for a period less than that prescribed by the statute of limitations, is insufficient, of itself, to justify the application of the rule of laches. 12 Am. and Eng. Ency. of Law [1 Ed.], pp. 544, 545, 553 and 569; Tyler on Inf. and Coverture [2 Ed.], p. 167; Kroening v. Goehri, 112 Mo. 648; Napton v. Leaton, 71 Mo. 369; Jopling v. Walton, 138 Mo. 485. (5) No tender of the money received by plaintiff was necessary. It is sufficient if the decree is conditioned upon the repayment of the money received by her. Where the plaintiff is or may be entitled to a money judgment in addition to equitable relief, no tender is required. Jopling v. Walton, 138 Mo. 485; Kline v. Vogel, 90 Mo. 244.
This is a proceeding in equity by plaintiff, wife of William A. Newman, against Lewis A. Newman, trustee and executor under the will of Socrates Newman, to have a certain house and lot, described in the petition, reconveyed to a trustee, and that the defendant be required to pay out of the funds of the estate of his testator, Socrates Newman, a certain mortgage placed thereon by him, and for other relief.
By order of court William A. Newman, husband of plaintiff, was made a party defendant, but the case was subsequently dismissed as to him also by order of court.
The material averments of the petition are, that prior to his death, Socrates Newman, the father of plaintiff's husband, William A. Newman, held the legal title to a certain house and lot in the city of St. Louis described in the petition, in trust, for her use and benefit, upon the terms and conditions set forth in a deed to the property from Joseph Roberts to said Socrates, whereby said property was conveyed to him for her sole use and benefit, free from the marital rights of her husband; that, in September, 1889, said Socrates Newman unmindful of his fiduciary relation towards plaintiff, by coercion, undue influence, abuse, and threats, induced her to sign an agreement wherein it was stated that plaintiff was security for debts due by her husband, William A. to said Socrates, her trustee; that she was not security for any such debts and that no such debts existed; that there was no consideration whatever for said contract or agreement, or for the conveyance subsequently made by her in pursuance of said contract; that, in accordance with the terms of said contract, and induced by the same influence which caused her to sign it, she subsequently conveyed said property to the defendant Lewis E. Newman, the son and present executor and trustee under the will of said Socrates; that, in pursuance of a preconcerted agreement, Lewis E. Newman immediately conveyed the property to his father, Socrates, the trustee of plaintiff, who on the twenty-first day of September, 1891, mortgaged it to one William Booth for the use and benefit of S. H. Eberlein to secure the payment of $ 7,000, then borrowed by Socrates Newman from said Eberlein, and applied to his own use, and that afterwards said Socrates frequently stated that he adopted this course to get control of said property for the purpose of preserving it for the plaintiff and her children. The petition further alleges that plaintiff and her children were thereafter ejected from said premises, and that Socrates Newman, and the defendant, Lewis E., combined and conspired to obtain said property without consideration, and to defraud plaintiff, and that the conveyance of the property by the latter to the former was without consideration. That there was at the time of the execution of said agreement a mortgage on the property, which was paid off with money belonging to plaintiff, and not with moneys of her husband, as stated in the agreement.
The petition then prays that said contract be declared void, and decreed to be canceled; that the property be reconveyed...
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