Paul v. Leavitt

Citation53 Mo. 595
PartiesW. W. PAUL, Respondent, v. M. S. LEAVITT, Appellant.
Decision Date31 October 1873
CourtUnited States State Supreme Court of Missouri

Appeal from Audrain Circuit Court.

Forrist & Ladd, for Appellant.

I. Frank A. Leavitt was disqualified and incompetent as a witness as against Mary S. Leavitt, his wife and co-defendant. (1 Greenl. Ev., § 334; 1 Phillip's Ev., 77; W. S., 1372; Fugate vs. Pierce, 49 Mo., 441.)

II. The parol evidence, as given by the witness Leavitt, was incompetent either to effect the deeds to Mrs. Leavitt offered in evidence, (Kimm vs. Weippert, 46 Mo., 532; 1 Greenl. Ev., §§ 275-277; 1 Phillip's Ev., 547-8,) or, to alienate or destroy the marital rights of her husband in the lands of Mrs. Leavitt described in the petition. (Schafroth vs. Ambs, 46 Mo., 580.)

III. The estate of Mrs. Leavitt in the lands described in the petition was purely legal, and one to which the marital rights of her husband had become attached and vested, and hence, said lands could not be subjected to the payment of her debts as her separate property. (Schafroth vs. Ambs, 46 Mo., 114; Bauer vs. Bauer, 40 Mo., 61; 2 Story's Eq., 1381.)

S. M. Edwards, with A. Binswanger, for Respondent.

I. The Circuit Court committed no error in admitting the testimony of F. A. Leavitt, the husband. The common law has been repealed by statute. All persons may now testify except those specially named in § 8. (W. S., 1374.)

II. This witness was the agent of his wife in this and all other business transactions. Under similar circumstances she would be permitted to testify for or against him. (W. S., 1373, § 5; Hardy vs. Mathews, 42 Mo., 406.) The causes at common law for the exclusion of husband and wife are identical.

III. No particular words are necessary to create a separate estate. It is the intention rather than the language. (Story's Eq., § 1380; Boal vs. Morgner, 46 Mo., 48.)

IV. If the husband, as agent, had bought the land with the separate funds of the wife, and taken the title directly himself, it would be held and treated as her separate property. Much more if he took unintentionally so as to vest in him a marital interest. (Tennison vs. Tennison, 46 Mo., 77; Shafroth vs. Ambs, Id., 114.) Even if the husband here had a marital interest, which is denied, equity to prevent fraud will subject her interest to the payment of her debt. (Pemberton vs. Johnson, 46 Mo., 342.)

WAGNER, Judge, delivered the opinion of the court.

The petition alleges that defendants, Frank and Mary S. Leavitt, are husband and wife, and that the said Mary made and executed her promissory note to the plaintiff, and that for the payment of the same she charged her separate property. There was a prayer for judgment against her alone, and that her separate estate might be subjected to the payment of the note. The defendant, Mary S., filed her separate answer to the petition, in which she denied the averments, that she had or possessed any separate property.

Upon this single issue, as to whether defendant had any separate estate, the trial was had.

For the purpose of maintaining the allegations of the petition, the plaintiff introduced several deeds of general warranty conveying certain real property to the defendant, Mary S., by a fee simple title. He then called as a witness, and had sworn, the co-defendant, Frank, who testified that the money of his wife paid for the lands, and that the deeds were taken in her name in consequence thereof; that he had acted as her agent in buying and selling lands, and that when he sold her lands he used the same money in buying others, and that the title was always taken in her name. The defendant objected to this witness, on the ground that he was disqualified; and also objected to the evidence, because it was not permissible by oral testimony to alter the character and effect of the deeds. But the court overruled both of these objections, and exceptions were duly taken and saved to its rulings.

This was all the evidence in the case, and the court found for the plaintiff, and awarded a special execution against the lands of the female defendant.

We will first notice the question raised in regard to the admissibility of the evidence of the husband, who was made a co-defendant.

No rule was better settled at common law than that husband and wife could not be permitted to give evidence either for or against each other. Whatever modification there is in...

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32 cases
  • O'Bryan v. Allen
    • United States
    • Missouri Supreme Court
    • May 7, 1888
    ...87 Mo. 282; Bell v. Railroad, 86 Mo. 599; Wood v. Broadley, 76 Mo. 23; Joice v. Branson, 73 Mo. 28; Haerle v. Krehin, 65 Mo. 202; Paul v. Leavitt, 53 Mo. 595. (3) The in partition were competent evidence. Anderson v. McPike, 86 Mo. 293; Dowzelot v. Rawlings, 58 Mo. 75. (4) The court erred i......
  • Hart v. Leete
    • United States
    • Missouri Supreme Court
    • March 23, 1891
    ...implication will be sufficient; but the purpose to create a separate estate must clearly appear. Garner v. Jones, 52 Mo. 68; Paul v. Leavitt, 53 Mo. 595; Morrison v. Thistle, 67 Mo. 596; 2 Story's Jur., sec. 1381. The words, "in their own rights," do not create a separate estate. They utter......
  • Travelers' Ins. Co. v. Beagles
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    • Missouri Supreme Court
    • August 12, 1933
    ...of Grace Beagles when she executed the deed of trust to The Travelers Insurance Company. McCartney v. Finnell, 106 Mo. 445; Paul v. Leavitt, 53 Mo. 595; Schafroth v. Ambs, 46 Mo. 580; Klenke v. Koeltze, 75 Mo. 239; Aeby v. Aeby, 192 S.W. 97; Crump v. Walkup, 246 Mo. 266; Siling v. Hendricks......
  • Sehr v. Lindemann
    • United States
    • Missouri Supreme Court
    • December 22, 1899
    ... ... he was the husband of one of the plaintiffs. R. S. 1889, sec ... 8922; Joice v. Branson, 73 Mo. 28; Paul v ... Leavitt, 53 Mo. 595; Wood v. Broadley, 76 Mo ... 23; Callahan v. Billat, 68 Mo.App. 435 ...           ... OPINION ... ...
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