Schenck v. Stumpf
| Decision Date | 31 December 1878 |
| Citation | 6 Mo.App. 381 |
| Parties | SARAH A. SCHENCK ET AL., Respondents, v. WILLIAM STUMPF, SR., Appellant. |
| Court | Missouri Court of Appeals |
1. The fact that the instrument sued on is not filed with the justice is not sufficient ground for dismissing the suit.
2. Where a married woman is a proper party to an action, the husband must be joined.
3. Where the trustee to whom was conveyed realty for the separate use of a married woman is dead, a lease executed by the married woman is void, and no action can be maintained on it.
4. A lessee is not, by the fact that his co-lessees entered under a void lease and occupied according to its terms, estopped to dispute its validity, estoppels being mutual, and the lessor, a married woman, not being estopped.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.
FRED. STUMPF, for appellant: In an action before a justice of the peace, the instrument sued on must be filed with the justice.--Wag. Stats. 813, sect. 9; Sublett v. Noland, 5 Mo. 516; Lemon v. Cass, 60 Mo. 173. A married woman can make a valid lease of property conveyed to a trustee for her separate use, though the trustee be dead.-- Baker v. Hall, 59 Mo. 265; Roberts v. Mosely, 51 Mo. 282.
C. C. SIMMONS, for respondents: The husband and wife must be joined, where the wife is a necessary party.-- Boatman v. Curry, 25 Mo. 433; Grant v. White, 42 Mo. 285. Estoppel.-- Grant v. White, 42 Mo. 285. It was not necessary to file with the justice the lease sued on.-- Sublett v. Noland, 5 Mo. 516; Boatman v. Curry, 24 Mo. 433.
This was an action before a justice of the peace, against William Stumpf, Sr., and two other defendants, for three months' rent under a written lease. There was judgment against all the defendants before the justice, and William Stumpf, Sr., appealed. On trial anew in the Circuit Court, there was a finding and judgment against defendant and his sureties on the appeal-bond, from which defendant appeals.
The plaintiff introduced in evidence a deed to Lawrence Matthews as trustee, for the sole and separate use of plaintiff, Sarah Schenck; also a lease dated May 22, 1876, executed by Sarah Schenck alone, by which she demised to the defendants, William Stumpf, Sr., William Stumpf, Jr., and George Anschutz, the property described in the trust-deed, for a term of three years, commencing at the date of the lease, at a certain yearly rent, payable monthly in advance. The lease is not under seal, and is signed in duplicate by the lessor and lessees.
Plaintiff Sarah testified that she was, at the date of the lease, the wife of the co-plaintiff; that she executed the lease; that the trustee, named in the deed read in evidence is dead, and that no trustee is appointed in his place; that George Anshutz and William Stumpf, Jr., occupied the premises, and paid the rent up to the 22d of October, 1876; and that the amount sued for is due for three months' rent, to January, 1877. On cross-examination, she said that William Stumpf, Sr., never occupied the premises; that the other two lessees always paid the rent to her agent; that William Stumpf, Sr., signed the lease, and that she wanted some responsible person as surety for the rent.
It is contended by counsel for the appellant that the justice had no jurisdiction of the action, as it appears that the lease read in evidence, and which is the foundation of the action, was not filed before the justice; that plaintiff's husband is improperly joined; that the action could only be brought in the name of Sarah Schenck's trustee; and that the lease, being executed by a married woman, is void. The record shows that these points were all properly saved on the trial.
1. The fact that the instrument on which the action was founded was not filed with the justice is no ground for dismissing the suit. This is ruled in many cases. 5 Mo. 516; 25 Mo. 433; 27 Mo. 396.
2. The statute is imperative that the husband must be joined when a married woman is a party. If Mrs. Schenck was a necessary or a proper party to this action, her husband was rightly joined.
3. The action being on a written lease, was properly brought in the name of the lessor; and if it was competent for Mrs....
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Schenck v. Stumpf
...6 Mo.App. 381 SARAH A. SCHENCK ET AL., Respondents, v. WILLIAM STUMPF, SR., Appellant. Court of Appeals of Missouri, St. Louis.December 31, 1. The fact that the instrument sued on is not filed with the justice is not sufficient ground for dismissing the suit. 2. Where a married woman is a p......
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