Rosenheim v. Hartsock

• Decision Date: 20 December 1886
• Citation: 2 S.W. 473,90 Mo. 357
• Parties: Rosenheim et al. v. Hartsock, Appellant
• Court: Missouri Supreme Court

2 S.W. 473

90 Mo. 357

Rosenheim et al. v. Hartsock, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from Linn Circuit Court. -- S. P. Houston, Esq., Special Judge.

Affirmed.

W. H Brownlee for appellant.

(1) The contract of a married woman for goods sold and delivered is not a present lien on her separate estate, but is only made so by decree to that effect. Kelley on Contracts of Married Women, p. 238, p. 250, note 1, p. 284, note 1, p. 285; Com. Exchange v. Babcock, 42 N.Y. 613; Armstrong v. Ross, 20 N.J.Eq. 109; 12 Cent. Law Jour. 289; Davis v. Smith, 75 Mo. 225; Klenke v Koeltze, 75 Mo. 239; Freeman on Judg. 196. (2) The judgment is a general judgment against a married woman, and is void. St. Louis to use, etc., v. Bernoudy, 43 Mo 554. (3) It is necessary that the decree should in terms make the debt sued for a charge or lien on the land. Kelley on Married Women, p. 238, note 1, p. 284, note 1, p. 285, and pp. 277, 278; 12 Cent. Law Jour. 289; Armstrong v. Ross, 20 N.J.Eq. 109; Davis v. Smith, 75 Mo. 225; Freeman on Judg. 616.

H. Lander for respondents.

(1) The theory that the doctrine of lis pendens only applies to cases where a lien exists cannot be sustained. R. S., sec. 3217. "Any equitable right, claim, or lien." O'Reilly v. Nicholson, 45 Mo. 166-7; Turner v. Babb, 60 Mo. 342; McIlwrath v. Hollander, 73 Mo. 105; Murray v. Lilburn, 2 Johns. Ch. 444-5; 2 Story's Eq. Jur., sec. 908; Newman v. Chapman, 2 Rand. 93. (2) As to the second point, that the judgment or decree in the case of Rosenheim et al. v. Julia McQuarters, is in personam against a married woman, and, therefore, void, it cannot be sustained. Hoskinson v. Adkins, 77 Mo. 537, 540-1. (3) As to the third point, that the decree does not in terms charge the debt of Julia McQuarters upon her land, respondents say, that no question is raised as to the jurisdiction of the court in the case of Rosenheim & Levis v. Julia McQuarters et al., over either the subject matter or the person; that, while the decree in form may be erroneous, it is not void, and, therefore, cannot be impeached collaterally. Hoskinson v. Adkins, 77 Mo. 540-1; Gray v. Bowles, 74 Mo. 419; State ex rel. v. Donegan, 83 Mo. 374; Yeoman v. Younger, 83 Mo. 424; O'Reilly v. Nicholson, 45 Mo. 163. (4) The decree may in form be irregular, erroneous and voidable, but it certainly is not void when considered collaterally. From the agreed case, the notice of pendency of suit appears to have been filed for record before the suit to charge the debt on the land was commenced. No point of objection is made on that account. If such objection were made, the case of Haughton v. Mariner, 7 Wis. 224, is referred to by respondents.

OPINION

Sherwood, J.

Ejectment for south half of northwest quarter of section 1, township 57, range 19, Linn county. Pleading in usual form. Both parties claim title under Julia McQuarters, a married woman. The case was tried on this agreed statement of facts:

That Mrs. McQuarters obtained credit with plaintiffs, merchants in St. Louis, for a stock of goods; that when the debt became due and was unpaid, plaintiffs filed and recorded the equitable statutory notice in the recorder's office in Linn county, as follows:

"Mathilda Rosenheim, Leo Levis, Plaintiffs,

vs.

"Julia McQuarters, Jno. McQuarters, Sarah A. Farr, Defendants.

"In the Linn Circuit Court.

"To whom it may concern: Take notice that an action has been commenced in the circuit court of Linn county, writ returnable as to defendant, Sarah A. Farr, to December term, 1871, thereof, by said plaintiffs against said defendants, in which said action the following described premises are sought to be charged with the debt therein sued on, and certain fraudulent deeds among said parties defendant, affecting said land, set aside. Description of land as follows: The south half of the northwest quarter of section one (1), township fifty-seven (57), range nineteen (19), Linn county, Mo.

"Mathilda Rosenheim and Leo Levis,

"By Torrance & Burgess, their attorneys.

"Linneus, Mo., Nov. 27, '71.

"Filed for record, Nov. 28, 1871.

"Thos. Kille, Recorder."

That afterwards, the plaintiffs instituted suit in said court against Julia McQuarters and her husband to charge said land with said debt, and thereafter, on the fifth day of December, 1873, obtained a decree against the defendants therein as follows:

"Linn County Circuit Court Record, December Term, December 5, 1873.

"Mathilda Rosenheim, Leo Levis, Plaintiffs,

vs.

"Julia McQuarters, Jno. McQuarters, her husband, and Sarah A. Farr, Defendants.

"Now at this day come the parties by their counsel and all and singular the matters are submitted to the court, which, having seen and heard, the court doth find that the defendant, Julia McQuarters, is indebted to the plaintiffs in the sum of nine hundred and thirty-seven dollars and fifty cents, on an account for goods, wares and merchandise sold to her on her own account and credit; and that, at the time thereof, she was the owner, in her own right and as her separate property, of the following described tract of land, being in the county of Linn and state of Missouri, to-wit: The south half of the northwest quarter of section one (1), township fifty-seven (57), range nineteen (19), which she intended to charge with said indebtedness and on account of which she received the credit; which said tract of land she afterwards conveyed to one Boner, and Boner to the defendant, Sarah A. Farr, without any consideration, for the purpose of defrauding her creditors; and that the said Sarah A. Farr now holds the same in trust for them, and the court doth thereupon adjudge and decree that plaintiffs have and recover of and against said defendant, Julia McQuarters, the sum of nine hundred and thirty-seven dollars and fifty cents ($ 937.50), together with their cost in this behalf laid out and expended; and that said tract of land hereinbefore described be sold, and the proceeds arising from the sale thereof, or a sufficient amount thereof, be applied in satisfaction of this judgment, and that execution issue accordingly."

After filing said notice, and before the final decree, the defendant, Hartsock, took from said Julia McQuarters, and her husband, a deed of trust on said land to secure money borrowed at that time; and after the said decree, the said defendant herein sold the land under his deed of trust and purchased the same, received a proper conveyance therefor, and took possession of the land. He was not a party to the suit to charge the land with the debt of Mrs. Mcquarters. The cause was submitted to the court. The plaintiffs, to sustain the issues on their part, introduced in evidence the record of the equity suit and the decree therein, the notice recorded aforesaid, and a sheriff's deed, under the decree, to plaintiffs. Defendants objected to reading the decree in evidence, for the reason that the same is a general judgment against a married woman, and insufficient to charge the land with the debt, which objection the court overruled, and allowed said decree to be read in evidence, to which ruling of the court in so overruling defendant's objection to said decree, and allowing the same to be read in evidence, defendant at the time excepted. Here plaintiff rested.

Defendant, to sustain the issues on his part, introduced the deed of trust of Julia McQuarters and her husband, and the trustee's deed to defendant, to the reading of which plaintiff objected, for the reason that the evidence so offered was insufficient to defeat plaintiff's title to said land, which objection the court sustained, and excluded said evidence; to which ruling of the court, in excluding said deeds, the defendant at the time excepted. The court then found the issues for the plaintiff, and rendered final judgment for the recovery of said land against the defendant.

I. The statute in regard to equitable liens provides: "In any civil action based on any equitable right, claim, or lien, affecting, or designed to affect, real estate, the plaintiff shall file for record, with the recorder of deeds of the county, etc., a written notice of the pendency of the suit, etc.; and the pendency of such suit shall be constructive notice to purchasers or incumbrancers." R. S., sec. 3217. In this case it is idle to speculate as to what is the precise term which should be employed to designate the effect of the act of a married woman who, possessed of a separate estate, takes such a course, or makes such a contract, either express or implied, as enables a court of equity, by proper decree, to have her separate estate sold and applied to the payment of the debt thus contracted. Sometimes the authorities call the result of the act of a feme covert, in such circumstances, "a charge;" but the name of the act, or the name of the...