Owings v. Wiggins

• Decision Date: 24 March 1896
• Citation: 34 S.W. 877,133 Mo. 630
• Parties: Owings v. Wiggins et al., Appellants
• Court: Missouri Supreme Court

34 S.W. 877

133 Mo. 630

Owings v. Wiggins et al., Appellants

Supreme Court of Missouri, First Division

March 24, 1896

Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and remanded.

Monks for appellants.

The purchase of the land with the money inherited by the wife and taking the title in the husband's name gave him the legal title in trust for her. R. S. 1879, sec. 3296. Where a trust is created for a married woman's separate use without more, she has an alienable estate independent of her husband which she may dispose of as a femme sole owner; she has also the power incident to the property in general of contracting debts to be paid out of her separate estate. Whitesides v. Cannon, 23 Mo. 457; Dunifer v. Jecko, 87 Mo 282. From the testimony of the respondent in this case there is no question but that this land came to her during coverture by purchase with her separate money; therefore the conveyance in question was valid and binding without her husband joining her in it. Brown v. Dressler, 125 Mo. 589.

OPINION

Macfarlane, J.

In 1868 plaintiff and James K. P. Owings were married, and were divorced in 1893. On the first day of May, 1881 plaintiff's husband purchased the eighty acres of land here in controversy. The money used in the purchase of the land was the separate property of plaintiff though the legal title to the land was taken in the name of her husband. It appears that these persons did not live together as husband and wife for the last ten or twelve years of their married life, plaintiff residing on the land and her husband the greater part of that time living in the state of Arkansas.

In April 1891, plaintiff commenced a suit in Phelps county to recover some claim she asserted in her father's estate, and was ruled to give a bond to secure the costs. She applied to defendant Wiggins and one William Monks to sign her cost bond and offered to secure them against losses by a mortgage on the said land. She then informed them of the condition of the title and represented that the title was only held by her husband in trust for her and authorized them to institute any suit necessary to secure a good title. These parties signed the bond on these conditions, and plaintiff alone executed acknowledged in due form, and delivered to them a mortgage on the land, conditioned that she should indemnify them on account of any losses they might sustain as sureties. The mortgage contained a power of sale. Plaintiff lost her suit and the costs, amounting to $ 266, was adjudged against her and her sureties on the cost bond. Execution was issued and said sureties were required to pay the costs. Plaintiff refused to refund the amount paid and denied that she had any interest in the land. The sureties sold the land under the power conferred under the mortgage and defendant Wiles became the purchaser and a deed was made to him by the mortgagees. It appeared that this purchase was made for the benefit of defendant Wiggins. Afterward, in November, 1892, the husband of plaintiff by deed conveyed to defendant Wiggins the...