Seay v. Hesse
| Decision Date | 25 June 1894 |
| Citation | 24 S.W. 1017,123 Mo. 450 |
| Parties | Seay, Appellant, v. Hesse et al |
| Court | Missouri Supreme Court |
Appeal from Dent Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
E. A Seay and L. B. Woodside for appellant.
(1) This case is clearly distinguished from the decisions of this court, which hold that where a husband invests his wife's money in real estate he is held as a trustee for her; for in this case in the purchase of the original tract he put in $ 700 of his own means. (2) Under the testimony in this case this $ 1,300 should only be considered as a debt, for according to George Hesse's own testimony, she let him have it upon his promise to return it to her whenever she demanded it, and there is no evidence of any demand ever having been made. (3) An obligation of this kind would not draw interest. 2 R. S. 1889, sec. 5972. In the absence of evidence that property in the name of a married woman acquired during coverture, has been paid for by her separate means, the presumption of the law is that it was paid for with those of the husband, and in such case it is not within the protection of the "married woman act." Sloan v. Torrey, 78 Mo. 623. Mrs. Hesse having constantly consented that her husband should hold himself out to the world as owner of the real estate involved in this case and to contract debts on its credit, she is now estopped to claim it as against his creditors. Leete v. State Bank, 115 Mo. 184; Riley v. Vaughan, 116 Mo. 169.
James B. Harrison for respondents.
(1) The burden rests upon the wife to show she has acquired the property in dispute as her separate estate in some manner pointed out by the statute; the burden then shifts upon the husband's creditors to show that her possession and transaction with her husband are fraudulent and not in good faith. (2) It is settled that the right of one creditor of an insolvent debtor to secure a preference over others, is not affected by the fraudulent intent of the debtor to secure a preference over others or by simple knowledge thereof on his part, if there was no actual participation therein. Riley v. Vaughan, 116 Mo. 176; Sexton v. Anderson, 95 Mo. 379; State to use v. Mason, 112 Mo. 374. (3) The principal question relied upon by appellants and so persistently urged as being applicable to this case is the doctrine of estoppel. Judge Sherwood, in Rannells v. Garner, 80 Mo. 483, says: "Estoppels in pais are not applicable to feme covert, except when regarded as feme sole, in consequence of possessing separate estates." Cottell v. Spiess, 23 Mo.App. 35, which was rendered long prior to the case of Leete v. State Bank, 115 Mo. 184, and its application has been judicially considered in the case of Smith v. Johnson, 15 Mo.App. 594; Bankgert v. Bankgert, 13 Mo.App. 144. (4) It is also an established doctrine of estoppel that it can not be invoked, unless what was said or done by the party to be estopped can be shown to have influenced the conduct of the other. Spurlock v. Sproule, 70 Mo. 503; Acton v. Dooley, 74 Mo. 63; Rogers v. Martz, 73 Mo. 64; (5) There can be no defense on the ground of estoppel where the defendant has neither acted nor altered his situation on account of what was said by the other party, nor unless the estoppel was pleaded. Noble v. Blount, 77 Mo. 235. (6) Misrepresentations must be plain, not doubtful, nor matter of mere inference. The evidence must be clear that the wife knew that her husband was asserting the title and ownership to her property and that he was obtaining credit by reason thereof. Blodgett v. Perry, 97 Mo. 263; Sole v. Ins. Co., 33 Mo.App. 664. (7) If this deed to Mrs. Hesse was made in good faith and without fraud on the part of the husband, or if with fraud but without participation therein by Mrs. Hesse, then it must be upheld. Riley v. Vaughan, 116 Mo. 176. (8) The court passing upon the consideration of the Victor mill property says that "the husband having acquired no property since marriage, except the products of his wife's estate, the result of his personal labor and the amount paid by him on property bought for his wife beyond her original fortune are not subject to a levy by his creditors, since his obligation to support his family authorizes him to work on her land without wages for their support;" this certainly is the law. Cooper v. Ham, 49 Ind. 393; Wilson v. Loomis, 55 Ill. 352; Abney v. Deyo, 44 N.Y. 343; Lutie v. Joynes, 2 Head, 514; Hamilton v. Zimmerman, 5 Sneed, 39.
OPINION
In Banc
This is an action to charge real estate known as the Victor mill property, which was deeded to the defendant Elizabeth Hesse, with a judgment in favor of plaintiff and against George Hesse, her husband, upon the ground that the property was purchased with money and means of her husband, George Hesse, while he was indebted to this plaintiff, and conveyed to his wife, Elizabeth, for the purpose of hindering and defrauding plaintiff in the collection of his debt. The defense is that the property which was conveyed or traded for this real estate, although in the name of George Hesse, her husband, was in fact the property of the wife, and the taking of the deed to the Victor mill property in the name of the wife was but an act of justice to her.
The deeds to Elizabeth Hesse to the half interest in the Victor mill property recite a consideration of $ 2,450, but Headrick, who made one of the deeds, testified that they estimated the interest in the mill which was conveyed at $ 1,750, and the personal property, stock in the mill, at $ 300, which was all conveyed to Elizabeth Hesse, and George Hesse gave therefor what was known as the Bressie farm (subject to a mortgage), at $ 1,200 and executed his note for balance, secured by mortgage on some personal property.
When the father of Elizabeth Hesse died in 1872, there was due him a note from one Chris Hesse for the sum of $ 2,000, secured by deed of trust on real estate one-half of which belonged to Elizabeth. In 1876 George Hesse bought from Chris the land last mentioned for $ 2,000, and in part payment therefor put in Elizabeth's half interest in said note, which amounted at the time to $ 1,300, including interest, and gave his note for the balance. He says that he paid this note from the profits made on the farm, but Knippenberg, a witness for defendant, says that he borrowed $ 750, from one Fred Bower to pay off this note. Both defendants stated that Chris Hesse owed her more than $ 1,300, but only that amount was collected.
In 1880 George sold the farm that he had bought from his brother Chris for $ 1,800, including some personal property; the farm, however, only brought $ 1,500. In 1881 he bought a mill in Crawford county, from one N. G. Clark, for $ 4,000, of which he only paid $ 500 in cash, and gave his notes for the balance, part of which were the foundation for plaintiff's judgment. He stayed there two and a half years, and paid on those notes $ 1,500, and then sold the mill to one Fulton for $ 1,800 cash, Fulton agreeing to pay the balance of the notes. After selling the mill to Fulton he bought the Bressie farm, in Dent county, for $ 1,800, paying $ 1,200 cash, and giving a deed of trust thereon, executed by him and his wife, for $ 600, and taking the title to the farm in his own name. This deed of trust for $ 600 was still against the Bressie farm when he traded it to Headrick, and it was assumed by Headrick. It was in January, 1890, when he bought the Victor mill property and gave the Bressie farm therefor, subject to the deed of trust, giving his note for the balance, secured by a mortgage on some personal property.
Mrs. Hesse never at any time, so far as the evidence discloses, gave her husband and codefendant, George Hesse, by her assent in writing, authority to sell, incumber, or otherwise dispose of her money or property for his own use and benefit. She would not consent to a sale of the Bressie farm, unless the deed to the Victor mill property was made to her. The court found for defendants, and rendered judgment accordingly, and plaintiff perfected his appeal to this court.
The evidence clearly shows that at the time of the marriage of defendants, the husband had but little property of any value, not exceeding, all told, the sum of $ 100, while the wife received from her father's estate at least the sum of $ 1,300, which was invested in the farm in St. Charles county, purchased by defendant George from his brother Chris. This farm was subsequently sold by defendants at an advance of about $ 500, and the proceeds reinvested in a small tract of land in Dent county, upon which there was a mill. The money received by the defendant Elizabeth did not come into the hands of herself and husband until sometime during the year 1876, after the month of March, so that whatever property rights George Hesse acquired in the money and property of his wife, if any, was after the passage of section 3296, chapter 51, Revised Statutes, 1879, which is as follows:
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