Schafroth v. Ambs

• Decision Date: 31 March 1870
• Citation: 46 Mo. 114
• Parties: WILLIAM SCHAFROTH, ADMINISTRATOR, ETC., Plaintiff in Error, v. PETER AMBS AND WIFE, Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 114

WILLIAM SCHAFROTH, ADMINISTRATOR, ETC., Plaintiff in Error,

v.PETER AMBS AND WIFE, Defendants in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Court.

Sharp & Broadhead, for plaintiff in error.

I. In equity, no trustee need be named; none is necessary, whether the separate property was acquired before or during coverture, or whether the property be real or personal. (Tyler on Inf. and Cov. 431; 2 Sto. Eq. Jur., §§ 1380-4; Fears v. Brook, 12 Ga. 196, and cases cited; Newland v. Paynter, 4 M. & Cr. 408; Tullet v. Armstrong, id. 390; Shirley v. Shirley, 9 Paige's Ch. 363; Hamilton v. Bishop et al., 8 Yerg. 33; 2 Kent, 162, and note; Bennett v. Davis, 2 P. Williams, 316; Clancy on Married Women, 256-7; 2 Rop. on Husb. and Wife, 152, 183; Freeman v. Freeman, 9 Mo. 772; Hill on Trustees, 585, and note m; Id. 609.)

II. It being expressly averred in the petition and admitted by the demurrer that she did acquire, use, enjoy, and possess the property as her sole and separate estate, she possessed, as a necessary incident to such an estate, full power in equity to charge, pledge, and encumber it with the debt sued on--the instrument creating the trust not restraining her from exercising the full dominion of owner. (Whitesides v. Cannon, 23 Mo. 457; Claflin v. Van Wagoner, 32 Mo. 252; 2 Rop. Husb. and Wife, 245.)

III. This term, “sole and separate use,” is the proper technical phraseology universally recognized and adopted by conveyancers for the purpose of designating the exclusion of the marital rights. (Clancy on Married Women, 263; ex parte Ray, 1 Madd 119; 2 Rop. on Husb. and Wife, 158; Hill on Trustees, 420; 2 Sto. Eq., § 1382; Wells v. Sayers, 4 Madd. 409.) The authorities draw no distinction between the cases of married and single women as to the words necessary to create the separate estate, and indeed, in reason, none can be drawn. (Clancy on Married Women, 261.)

IV. But, moreover, the petition alleges Mrs. Ambs to have, as a matter of fact as well as law, held, used, and enjoyed the property as her separate estate, both she and her husband treating it as such; and even if she had not acquired it as her separate estate by the conveyance, the husband and wife treating the property as the wife's separate estate would give her the right of disposition claimed. (Caldwell v. Renfrew, 33 Verm. 213; Tyler on Inf. and Cov. 432.)

V. The principle that one claiming equitable relief must exhaust his remedies at law before he can come into equity, is applicable only to cases where the claim is legal but the legal remedies are insufficient. But in the case at bar, the jurisdiction of the court of equity is asserted upon the ground that the defendant, Katharina, is a married woman with a separate estate, which she has charged.

Clover, for defendants in error.

I. The bill or petition, as a proceeding in equity, is wholly insufficient to entitle the plaintiff to the aid and interposition of a court of equity. It fails to allege a suit upon the note as to Peter Ambs, maker, or judgment or execution, or return of execution nulla bona, or of anything else to give plaintiff a standing in a court of equity.

II. A married woman is not chargeable upon her note executed when covert, either in law or equity, either out of her general or separate estate, unless the note on its face shows and expresses an intention to charge her separate estate, or it is alleged in the bill and proven that the consideration for her indebtedness was incurred for the benefit of her separate estate.

CURRIER, Judge, delivered the opinion of the court.

The competency of a married woman to bind her separate property, by giving notes and other obligations, can no longer be regarded as an open question in this State, however unsettled the doctrine may be elsewhere. As to her separate property, she is here regarded as a femme sole, and, as to that, competent to make contracts which a court of equity will enforce, not against her personally, but against her separate estate; and not only so, the contract itself, as, for instance, a promissory note, is evidence of her intention to charge such property. It is sufficient prima facie evidence to establish the existence of such intention, without the introduction of other proofs. This court so decided in Coats v. Robinson, 10 Mo. 757, Judge Napton delivering the opinion of a majority of the court.

The whole subject was again reviewed at great length by Judge Leonard, and with his usual ability, in Whitesides v. Cannon, 23 Mo. 457, where the doctrine of the prior decision was re-stated and re-affirmed in its whole extent. The same questions were again brought up in Claflin v. Van Wagoner, 32 Mo. 252, and the court treated them as fully settled by the previous adjudications.

We are not disposed to go behind these decisions for the purpose of ascertaining what may be the state of the law on this subject in other States and countries. There are doubtless conflicting decisions and opposing authorities. Here, however, the decisions have been uniform and consistent, and establish not only a clear and intelligible rule, but one that is, on the whole, satisfactory. Its disturbance at this time would be both inexpedient and unwise.

In the case at bar it is claimed, however, that the petition fails to show that the estate sought to be subjected is in fact the separate property of the defendant, Mrs. Katharina Ambs. The petition is demurred to chiefly on that ground. The petition avers and the demurrer admits that the property in question was conveyed to Mrs. Ambs prior to her intermarriage with the other defendant, Peter Ambs, “for her sole and separate use;” that she has “ever since owned, held, and enjoyed said property as her own separate estate,” and that the “same is still so owned, held, and enjoyed by her.”

It thus stands admitted by the pleadings, not only that the property was originally conveyed to Mrs. Ambs for her sole and separate use, but also that it has ever since been so held and treated, notwithstanding her subsequent intermarriage with the other defendant. It thus seen that, so far as the mere words of a conveyance are competent to express and describe a separate estate, such an estate was created by the conveyance to Mrs. Ambs, and that the subsequent use and treatment of the property has conformed to the character of the estate sought to be created by the deed. As to what words are appropriate and efficient to describe a separate estate, see 2 Sto. Eq. Jur., § 1382.

It is objected, nevertheless, that the petition fails to show that, in the deed to Mrs. Ambs, trustees intervened to take the legal title. It is therefore argued that no separate estate was created by that instrument. The argument assumes that trustees were necessary for that purpose. The assumption is not well founded. A separate estate may be created without the intervention of trustees. Judge Story says that it has been settled for a hundred years that in equity the intervention of trustees in the creation of a separate estate in the femme is unnecessary, although the employment of trustees in the creation of such estates is conceded to be the better method of doing it. He then proceeds to say that “whenever real or personal property is given or devised, or settled on a woman, either before or after marriage, for her separate and exclusive use, without the intervention of trustees, the intention of the parties shall be...