Schneider v. Staihr

• Decision Date: 31 January 1855
• Citation: Schneider v. Staihr, 20 Mo. 269 (Mo. 1855)
• Court: Missouri Supreme Court
• Parties: SCHNEIDER, Plaintiff in Error, v. STAIHR & WIFE, Defendants in Error.

20 Mo. 269

SCHNEIDER, Plaintiff in Error,

v.STAIHR & WIFE, Defendants in Error.

Supreme Court of Missouri.

January Term, 1855.

1. The act of 1849, exempting certain property of married women from the debts of their husbands, does not prevent the wife from voluntarily joining in a conveyance of her real estate to secure a debt of her husband.

2. Where a minor feme covert joins in a mortgage of her real estate, she may plead infancy during minority in a suit to foreclose.

3. The husband's estate during the marriage may, however, be subjected to sale.

4. In a suit to foreclose a mortgage of an undivided interest in real estate, it is not proper to make a sheriff, who has made a partition sale of the land since the date of the mortgage, a co-defendant, for the purpose of obtaining an order upon him to pay over to the mortgagee the mortgagor's portion of the proceeds.

Error to Cole Circuit Court.

Petition by Schneider to foreclose a mortgage executed by Staihr and wife, in 1851, upon the wife's undivided interest in the real estate of her deceased father, to secure a note of the wife's brother upon which her husband was security. After the execution of the mortgage, the real estate was sold by the sheriff in partition by order of court. The sale was upon credit, and the purchase money had not yet become due. The sheriff was made a co-defendant, and the plaintiff prayed for an order upon him to pay over out of the wife's share of the proceeds enough to satisfy the mortgage debt.

The defendants answered, admitting the execution of the mortgage, but insisting that, as the wife acquired the property by descent, it could not be subjected to the payment of her husband's debts, and further alleging that, at the date of the execution of the mortgage, the wife was a minor.

At the trial, there was evidence that the wife was a minor when the mortgage was executed, and that she had not yet become of age. The court directed the jury to find for the defendants, if they believed the wife was a minor when she executed the mortgage, and now disavowed the act, and refused contrary instructions asked by plaintiff. An instruction that the plaintiff was entitled to a general judgment against Staihr, for the amount of the note secured by the mortgage, was also refused. The plaintiff then submitted to a non-suit, and after an unsuccessful motion to set the same aside, brings the case to this court by writ of error.

Parsons, for plaintiff in error.

I. In the eye of the law, Mrs. Staihr is not a minor. After her marriage, the law treats her as an adult.

II. Even if the fee simple title could not be sold on a foreclosure of the mortgage, still the husband's tenancy could be sold to satisfy the debt, and in this view, the plaintiff was entitled to recover against him. He was duly summoned and appeared to the action. If his interest in the mortgaged property was not sufficient to satisfy the debt, the plaintiff was entitled to have the residue levied of his other property. (R. C. 1845, tit. Mortgages, p. 571, § 12.)

III. The act of 1849 does not apply to this case.

IV. Mrs. Staihr cannot disavow the execution of the mortgage until she becomes of age. (9 Cow. 626; 17 Wend. 119.)

E. L. Edwards, for defendant in error.

I. The property conveyed by this mortgage, having descended to Mrs. Staihr after the debt secured thereby was contracted, cannot be held liable for such debt.

II. Property descending to a married woman cannot be made liable for a debt contracted by her husband as the security of another, under any circumstances. (Sess. Acts of 1849, p. 67.)

III. Mrs. Staihr being a minor when she executed the mortgage, is not bound by the same after disavowal. (Youse v. Norcum, 12 Mo.)

SCOTT, Judge, delivered the opinion of the court.

1. It cannot be maintained that the act of the 5th March, 1849, exempting the...