Rose v. Bates

• Decision Date: 31 July 1848
• Citation: 12 Mo. 30
• Parties: ROSE v. BATES.
• Court: Missouri Supreme Court

12 Mo. 30

ROSE

v.BATES.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM MARION CIRCUIT COURT.

RICHMOND & WELLS, for Appellant.

1st. For the purpose of settling the controversy between the complainant and defendant, all necessary parties are before the court. It is not material, where a married woman sues as a feme sole, that her husband should be a party to the suit if he be a non-resident of the State, or without the jurisdiction of the court. Story's Eq. Pl. § 61, note 4; 63, note 3, 77, 80, 135, a. 229, also § 72; Edwards on Parties, 3. 2nd. The contract attempted to be enforced by the complainant is not one required by the statute of frauds to be in writing; a party attempting a fraud cannot make use of the statute in aid of his object. Brown v. Lynch, 1 Paige Ch. R. 147; Roberts on Frauds, 103, 128, note 63; 1 Vernon, 296; Ambler, 67; 3 Vesey, 152. 3rd. At the time of the agreement between the complainant and defendant, and ever since, she, the complainant, could legally contract and be contracted with, sue and be sued, as a feme sole. More particularly could she sue or be sued in chancery in regard to her separate property; seven years absence raises a presumption of death. A married woman may acquire separate property, and an ability to act as a feme sole, by implication arising from a long absence of the husband, or his acquiescence in her acts as a feme sole. Bac. Abr. (last edition), title Baron & Feme; letter M.; Gregory v. Paul's Exr's, 15 Mass. R. 31; Abbott v. Bailey, 6 Pick. 89, 83; Reeves' Dom. Rel. ch. 8, p. 39; 1 Roper on Husband & Wife, 157; 4 McCord, 148, 429; Fonb. Eq. 97, 110, and notes; 17 Serg. & Rawle, 130, 361; 2 Vernon, 613; Corbet v. Poelnitz, 1 Term R. 5; 1 Durn. & East, 4, 5, 8; Clancy on Rights, 64, 7; Chitty on Contracts, 179, 80, shows that absence of seven years raises presumption of death; 1 Peters, 108; 1 Bos. & Pul. 358-9; 2 Kent's Com. 156, 63, 176. 4th. The defendant should account for the rents and profits since his possession of the property, he being in the same situation as a mortgagee in possession. See Bainbridge v. Owen, 2 J. J. Marshall, 465-6, and citations; Pirtle's Dig., title Mortgages. 5th. The complainant is entitled to double rents under the statute, the defendant having obtained possession of the property from complainant's tenant, and held the same after the termination of the lease, and after a written demand for possession. Rev. Stat. of Mo., 688. 6th. Although articles contemplating a separation of husband and wife are discountenanced in chancery, and a performance of them never decreed, yet the doctrine is different where the husband (as in this case), after the separation, enters into an agreement with the father or other relative of the wife, on certain conditions, and for a consideration. In such cases, the contract will be respected and enforced in chancery. 5 Bingham's N. C. 341, 141-2; Beach v. Beach, 2 Hill, 264; 1 Peters, 108.

ANDERSON, GLOVER & CAMPBELL, for Appellee. In this case the wife, living separate and apart from her husband by mutual agreement, claims to be the purchaser and owner of property, to have loaned money and taken a mortgage, and by virtue of a contract through her agent with M. D. Bates, to have the right to redeem from Bates upon payment of his judgment. This she cannot do without the intervention of a trustee. 1st. Because it is in fact a dissolution of the marriage contract, a throwing off of the liabilities and disabilities of the matrimonial relations. 1 H. Blacks. 350; 5 Term R. 679; 6 Term R. 604; 8 Term R. 545. 2nd. It is contrary to good morals and the policy of our laws. See 2 Story's Com. 652; 1 Clancy, 1; 2 Kent, 175; 11 Vesey, 530; 3 Merivale, 256; 2 Wend. 422; 4 Paige, 516; 1 Day, 221; 2 Hill, 264; 1 Mo. R. 476. 3rd. The relation of husband and wife still subsisting unimpaired, the property in dispute, if not the defendant's, is the property of the husband, and he must sue or be made a party. Rose was named in this bill as a non-resident, but after publication no further steps were taken as to him. 4th. If, however, her right to sue was admitted, still she was not entitled to a decree. 1. Because the facts and circumstances show that the pretended debt set out in the mortgage did not exist, and that said mortgage was executed by Meredith to his mother-in-law to secure the property against his creditors for his own use. 2. Because the averment in the bill that Bates would purchase the property for complainant, is not sustained by the evidence. If the evidence proves any agreement on the part of Bates, that he was to purchase the property at the second sale for any person--that person was Hugh Meredith. 5th. If, indeed, the agreement was proved to have been made by Bates, it was not in writing, and was void by the statute of fraud, which is insisted on by the answer. No trust arises, because the money was not Mrs. Rose's, but Bates'--and because the agreement was too uncertain to be decreed. 6th. The heirs of the deceased Meredith, who paid part of the purchase-money, and who was a partner, and entitled to the benefit of the purchase as completed by his partners, and who was not a party to Bates' judgment at law, should have been a party to this suit. 7th. Suppose there was a valid consideration for the mortgage, the conduct of Meredith, whose acts are pro hac vice, the acts of Mrs. Rose in preventing competition by the assignment alleged, and in refusing to complete the first purchase on his bid, lest the surplus should go to creditors, was iniquitous, and sufficient to justify the dismissal of her bill.

MCBRIDE, J.

Ann Rose, by her next friend, brought her bill against Moses D. Bates, and others, in the Marion Circuit Court. The bill charges that she has for many years last past been acting as a feme sole, by virtue of a contract of separation between her husband, Samuel Rose, and hereself, that she was possessed of a large property before her marriage with Samuel Rose, and upon their separation, a considerable portion of property, of various kinds, was secured to her, for her separate use, and free from the control of her husband. That in the year 1835 the complainant removed from the State of Pennsylvania with her son-in-law, Hugh Meredith, to this State, converting, prior to her removal, most of her separate estate into money, she was enabled to raise about $10,000, the wreck of a large estate, which she confided to said Mereditb, and intrusted him with the management of her business generally. That the said Meredith being disposed to enter into business, she permitted him to use her money as he thought best, she claiming and receiving from him, in the meantime, a comfortable maintainance. That after a time the said Meredith became greatly embarrassed, so that she distrusted his ability to refund to her the amount she had loaned him; in this state of affairs, it was concluded between them, that Meredith should secure her one-half of the amount loaned, by mortgage on his property; accordingly, on the seventh December, 1841, he executed to her a mortgage on a part of lot No. 8, in block No. 7, in Hannibal, to secure her in the sum of $5,000. It was understood at the time, that a portion of the purchase-money of said lot remained unpaid.

That the lot in question was purchased in July, 1839, by Hugh Meredith, Hamilton D. Meredith, and Napoleon B. Tapscott, jointly, of one Robert Buchanan; that a part of the purchase-money was paid at the time, and a note executed for the balance, $700, payable the first April thereafter; that Buchanan executed to them his title bond for a deed, when the purchase-money was fully paid.

That on the 1st October, 1839, Hamilton D. Meredith departed this life, he not having paid any part of the purchase-money, nor have his representatives, since his death, paid any part of the purchase-money. That after his death, a part of the note given to Buchanan was paid, and a new note executed by Hugh Meredith and Tapscott, for $300, that being the balance then remaining unpaid on said purchase; shortly thereafter, the last named note, by assignment, came to the hands of Moses C. Bates, who on the--day of--18-- instituted suit thereon, against the makers, and prosecuted the same to judgment and execution. In the meantime, a dissolution of the partnership of Tapscott & Meredith had taken place, and on settlement between them, the former sold to the latter his interest in the corner of the lot in question, upon which part of the lot they had erected a large brick building.

That when the execution of Bates against Tapscott & Meredith was issued, both of them were insolvent. Bates supposing, however, that he had a lien on the lot for the balance of the purchase-money, caused his execution to be levied thereon; whereupon the complainant become apprehensive that she would lose her security, she therefore urged Meredith to make some arrangement to settle the debt of Bates. Meredith assured her that it should be done, as Bates had told him, more than once, that he would give him time to raise the money, provided the payment was rendered secure. That to effect an arrangemeut with Bates, she authorized Meredith to act as her agent, but if no satisfactory arrangement could be made with Bates, then her agent was to purchase the property for her at the sheriff's sale, if the same was not bid so high as to disable her from paying the same.

That the lot having been levied on, was advertised for sale by the sheriff on the 10th January, 1842, at which time Bates proposed to Meredith that he, Bates, would bid off the property for the benefit of the complainant, and to be conveyed by him to her, by quit-claim deed, when she should pay the amount of the execution with interest and costs. But Meredith preferred bidding for the property himself, and would have secured the property to her and the debt to Bates, had not the latter, by bidding for the property himself, run it up to $1,010, when it was struck...