Ruhe v. Buck

• Citation: 27 S.W. 412,124 Mo. 178
• Parties: Ruhe, Appellant, v. Buck et al
• Decision Date: 09 July 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 412

124 Mo. 178

Ruhe, Appellant, v. Buck et al

Supreme Court of Missouri, Second Division

July 9, 1894

Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

Lewis & Ramsay for appellant.

(1) The court below erred in finding for the defendant for the reason that the equitable title of defendants Julia E. and O. W Buck in the property in controversy was subject to attachment, execution and sale. Revised Statutes, 1889, sec 4915; Eddy v. Baldwin, 23 Mo. 588. (2) The court erred in finding for defendants for the reason that the assignment of the Perkins contract to Mrs. Julia E. Buck was a fraud upon her husband's creditors, and the land was therefore liable to sale upon attachment and execution at the instance of such creditors. See above authorities; also Jordan v. Bushmeyer, 97 Mo. 94; Ryland v. Callison, 54 Mo. 513; Bobb v. Woodward, 50 Mo. 95. Upon showing the insolvency of the husband and his purchase of the lot in the wife's name the burden devolved upon her to show that it was purchased in good faith with her own moneys. Seitz v. Mitchel, 94 U.S. 580; Sloan v. Terry, 78 Mo. 617; Patton v. Bray, 113 Mo. 595; Crook v. Tull, 111 Mo. 283. (3) The court erred in not finding for plaintiff, for the reason that the attachment proceedings against Oliver W. Buck and his wife, Julia E. Buck, being for a personal legal liability against both of them, there was no reason why it could not be enforced in a legal proceeding against both of them -- even under the strict old common law rules such judgments might be so rendered in the cases where she was so personally liable -- as in case of her antenuptial contracts or torts during coverture. Gruen v. Bamberger, 11 Mo.App. 261; Walker v. Deaver, 79 Mo. 664; Merrill v. St. Louis, 12 Mo.App. 473; S. C., 83 Mo. 244; Conrad v. Howard, 89 Mo. 219; Smith v. Bead, 73 Ind. 159; 14 Am. and Eng. Encyclopedia of Law, p. 637, and note 7, p. 638, and note 9, pp. 661 and 762. Kingman v. Paulson, 126 Ind. 502. The Dakota judgments, which were general personal liabilities of Mrs. Buck, were entitled to "full faith and credit in every other state." Art. 4, sec. 1, U. S. const; Chew v. Brumagen, 13 Wall. 497; Cheever v. Wilson, 9 Wall. 108; Ins. Co. v. Harris, 97 U.S. 331; Kingman v. Paulson, 126 Ind. 502; Kingman v. Paulson, 26 N.E. 373. (4) The court erred in holding that an attachment or execution could not issue against a married woman. There is no reason why it should not be done where she is personally liable, as in this case. Bedsworth v. Bowman, 104 Mo. 44; Walker v. Deaver, 79 Mo. 664; Merrill v. St. Louis, 83 Mo. 244; sec. 6868, R. S. 1889, in proper case authorizes attachment or levy. (5) The court below erred in holding the attachment suit against Mrs. Buck void, for the reason that the court had jurisdiction of the subject-matter, that is, of the question of her personal liability upon the Dakota judgments, conceded to be personal liabilities against her where she lived, and having jurisdiction of the subject-matter and of the person, the judgment could not be void on account of the form of the proceedings. Babb v. Bruere, 23 Mo.App. 604; Gates v. Tusten, 89 Mo. 13; Scott v. Caruth, 50 Mo. 120; Clark v. Clark, 86 Mo. 114; Rosenheim v. Hartstock, 90 Mo. 357. The real reason why under our practice equity was necessary to charge the separate property of a married woman, was because her contracts as such were void, and it was only her separate property that could be reached and in the very nature of things an equitable proceeding to appropriate same was necessary. Davis v. Smith, 75 Mo. 219. The presumption is in favor of the jurisdiction of the court. McClanahan v. West, 100 Mo. 399.

Hunt & Bailey for respondents.

(1) A married woman, under the revision of 1879, could not be sued at law, and certainly not by attachment, but the only remedy against her was by bill in equity. Gage v. Gates, 62 Mo. 412; Williams v. Railroad, 8 Mo.App. 135; Drake on Attachment, [2 Ed.] secs. 247, 249; Bachman v. Lewis, 27 Mo.App. 81; Gabriel v. Mullen, 30 Mo.App. 465; French v. Seigal, 9 Mo.App. 467; Brumback v. Wemstein, 37 Mo.App. 520; Boekhoff v. Gruner, 47 Mo.App. 22; State to use v. Beldsmeier, 56 Mo. 226; Coffee Co. v. Fritz, 41 Mo.App. 389; Baer v. Pfaff, 44 Mo.App. 35; Decker v. Lidwell, 3 Mo.App. 586. (2) Prior to the revision of 1889, a judgment at law against a married woman is a nullity. Judgment at law void. Werneke v. Wood, 58 Mo. 537; Gage v. Gates, 62 Mo. 412; Lincoln v. Rowe, 64 Mo. 138. (3) The law has never authorized an attachment against a maried woman's property. Meyers v. Van Wagner, 56 Mo. 115; Beal v. Morgan, 49 Mo. 48; Schuster v. Schuster, 93 Mo. 438; Turner v. Shaw, 96 Mo. 22 and 522; Kimball v. Silvers, 22 Mo.App. 520; Kimm v. Weippert, 46 Mo. 532. (4) The wife is given the same ownership, possession and enjoyment of her property as she would have were she sole and unmarried. Emerson v. Clayton, 32 Ill. 493; Wankirk v. Skillman, 34 N. J. 114; Blair v. Railroad, 89 Mo. 391; Bedsworth v. Bowman, 104 Mo. 44. (5) The indebtedness being for cigars, not necessaries, and they nowhere allege that Julia E. Buck attempted to bind her own estate, hence it created no charge upon the separate estate of the defendant, Julia E. Buck, in the attachment suit, and the judgment was void; so, also, sheriff's deed passed no title to J. P. Lewis. Hooton v. Ransom, 6 Mo.App. 22; Kimm v. Weippert, 46 Mo. 532; Maguire v. Maguire, 3 Mo.App. 463; Bedsworth v. Bowman, 104 Mo. 44. (6) The Dakota judgments were sent here for collection, and they were simply record debts from a sister state; but appellant seeks to collect them by the unusual, unwarranted and unlawful proceedings by attachment. Story's Conflict of Laws, sec. 330; Story on Bills, sec. 160; 8 Peters, 361; 4 Metcalf, 594; McMerty v. Morrison, 62 Mo. 140; Lyons v. Campbell, 34 Mo.App. 214; Smith v. Moore, 53 Mo.App. 525; 12 Am. and Eng. Encyclopedia of Law, foot page 148o, and authorities cited; and foot page 148t, and authorities cited. (7) Wife has power to convey her property by power of attorney. R. S. 1879, sec. 670; R. S. 1889, sec. 2397; Melton v. Smith, 65 Mo. 315; Bedsworth v. Bowman, 104 Mo. 44; Richardson v. De Giverville, 107 Mo. 422; Leete v. Bank, 115 Mo. 184; McClure v. Herring, 70 Mo. 18. (8) The court has no jurisdiction over the property in the attachment suit. Hardin v. Lee, 51 Mo. 244; Freeman v. Thompson, 53 Mo. 194; Bailey v. McGinnis, 57 Mo. 362. (9) Sheriff's deed only relates back to the time of sale. If the judgment is void, the sale is void. Ford v. French, 72 Mo. 251, and authorities cited. (10) There was no fraud on the creditors of O. W. Buck in the sale of this property. Thompson and Trout had no notice. Sibley v. Hood, 3 Mo. 206; McLaran v. Mead, 48 Mo. 115; Hartt v. Rector, 13 Mo. 497; Dougherty v. Cooper, 77 Mo. 528. (11) An insolvent person may make a transfer of property to his wife. Bank v. Overall, 16 Mo.App. 510; Craig v. Zimmerman, 87 Mo. 475; Walsh v. Ketchum, 87 Mo. 427; Clark v. Rynex, 53 Mo. 380; Decker v. McGinnis, 57 Mo. 362.

Gantt, P. J. Burgess, J., concurs; Sherwood, J., dissents.

OPINION

Gantt, P. J.

This record presents this case. At the time of the transactions involved, a married woman in Missouri was incompetent to make a valid contract at law. At that time, however, she was authorized by the laws of Dakota to contract as a feme sole, and sue and be sued as such.

Mrs. Buck, the wife of O. W. Buck, became the purchaser of a city lot in Tarkio, Missouri, and held a bond for title from Perkins the owner, until a balance of the purchase money should be paid.

Under the firm name of O. W. Buck & Company Mrs. Buck and her husband became indebted in Dakota and the interest of herself and her husband in said lot was attached for said debt in an action commenced in the circuit court of Atchison county, Missouri. After this attachment was levied on the lot, Mrs. Buck sold the lot to Thompson & Trout, who afterward paid the balance of the purchase money to Perkins and received a warranty deed from Perkins which was recorded.

That a married woman was not subject to a suit by attachment in Missouri prior to 1889 was decided by this court in Gage v. Gates, 62 Mo. 412, and that a judgment obtained against her in such a proceeding was a nullity was repeated in Lincoln v. Rowe, 64 Mo. 138, and that she could not be sued as a member of a mercantile firm at law was also settled in Weil v. Simmons, 66 Mo. 617.

From these and many other decisions, it would appear that no resident creditor could proceed by an attachment at law against a married woman in this state, for a debt contracted in this state, and this record presents the question whether our laws will give nonresident creditors remedies to collect their claims against a married woman in this state which we uniformly deny to our own citizens.

The supreme court of the United States in Scudder v. Bank, 91 U.S. 406, 23 L.Ed. 245, sums up the general principle in a few words: "Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought."

So that, while we concede that, by the laws of Dakota, Mrs. Buck could enter into a contract of partnership with her husband and become bound for the debts of that partnership, the question remains, when the creditors sue her in this state, are they bound to take such remedies and such only as our laws offer against a married...