Seay v. Hesse

• Decision Date: 25 June 1894
• Citation: 27 S.W. 633
• Parties: SEAY v. HESSE et al.
• Court: Missouri Supreme Court

27 S.W. 633

SEAY v. HESSE et al.

Supreme Court of Missouri.

June 25, 1894.

In banc.

Action by A. J. Seay to charge certain real estate owned by Elizabeth Hesse with a judgment against her husband, George Hesse. Judgment for defendant, and plaintiff appeals. Judgment was affirmed by Division No. 2 (24 S. W. 1017), which opinion was adopted by the court in banc.

MACFARLANE, J. (concurring).

The evidence clearly shows that defendants were married in 1876, and in August of that year Mrs. Hesse received, by inheritance from her father, the sum of at least $1,300. This money went into the hands of her husband with no other agreement than that he "would pay it to her whenever she demanded it," and this was merely verbal. Mr. Hesse used the money in buying and trading in real estate, as detailed in the statement of Judge BURGESS. There was no evidence which tended to prove that these transactions were for the benefit of the wife, until the Bressie farm was purchased, in 1884. Mrs. Hesse testified that she understood the title to that farm was put in her name, and only learned differently when it was traded for the mill property, in 1890. There was no agreement or understanding that the title to any of the other property was to have been taken in the wife's name.

Under this evidence, as between herself and the creditors of her husband, we can only treat the wife as one of his creditors for the amount of the money she permitted him to use. We can fairly infer from the evidence that a demand of payment was made in 1884, when the Bressie farm was purchased. A demand could be implied from the fact that the wife requested the title to that land be put in her name. From that date she would be entitled to interest at 6 per cent. The interest for six years would make the amount due the wife about $1,800, while the cash payment for the mill was only $1,200. Plaintiff insisted — First, that the conveyance of the mill property in question was and is fraudulent as to creditors, under the statutes concerning fraudulent conveyances; and, second, that defendant Mrs. Hesse is estopped to claim the property as her own as against her husband's creditors. This latter claim is put upon the ground that to permit the husband for years to deal with the property of the wife in his own name, and as belonging to him, and by means of which he obtained credit, would be a fraud upon creditors who dealt with him on the faith of his apparent ownership.

Prior to the married woman's act of 1875, the doctrine of estoppel in pais did not apply to a married woman, except as to her separate estate, for the very good reason that, being incapable of binding herself or her property by contract, she could not do so by mere words or conduct. Henry v. Sneed, 99 Mo. 425, 12 S. W. 663; Rannells v. Gerner, 80 Mo. 474; Mueller v. Kaessman, 84 Mo. 318. By the act mentioned, she is invested with all the rights of proprietorship in her property, which carries with it the right of alienation, and the right to bind herself, with respect to it, by contract. So it has been frequently ruled by this court. Blair v. Railroad Co., 89 Mo. 383, 1 S. W. 350; Brown v. Bowen, 90 Mo. 184, 2 S. W. 398; Broughton v. Brand, 94 Mo. 169, 7 S. W. 119. If she can deal with others, she must do so on the same principles of good faith as is required from others. She could no more take advantage of her own fraud than could another having the same right to contract. It seems to me to follow that, in respect to her statutory property, in order to prevent fraud, she would be estopped by her acts and declarations to the same extent as others, but not beyond. She cannot be estopped by the words and conduct of her husband, unless he was acting within his authority as her agent, and in her behalf. Otherwise, the husband's conduct cannot estop the wife. As to the right to contract, the statute emancipates the wife from the common-law disabilities of coverture. In this respect the husband and wife are no longer one in law, but each is an independent, responsible person, and, therefore, capable of contracting with each other. While the statute relieves the wife of the marital rights of her husband over her property, it at the same time imposes on her, in...