Seifert v. Jones

• Court: Missouri Supreme Court
• Writing for the Court: MARTIN
• Citation: Seifert v. Jones, 84 Mo. 591 (Mo. 1884)
• Decision Date: 31 October 1884
• Parties: SEIFERT, Administrator, Appellant, v. JONES.

84 Mo. 591

SEIFERT, Administrator, Appellant,

v.JONES.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Franklin Circuit Court.--D. Q. GALE, Esq., Special Judge.

AFFIRMED.

John R. Martin for appellant.

(1) The respondent was not entitled to recover on his counter-claim or set-off. The action was commenced on October 4, 1877; the set-off pleaded was a note, dated January 25, 1876, payable two years after date. The whole record, including the judgment itself, shows that this note was not due at the time of the commencement of the action. An off-set cannot be allowed either in law or equity, or under the statute, unless it was due at the time of the commencement of the action; and where the administrator is the plaintiff, the cause of action interposed by the off-set must have accrued in the lifetime of the intestate. R. S., secs. 3522, 3869; Waterman on Set-off (1 Ed.) sec. 381, p. 427; Vastine, Adm'r, v. Divian & Merrick, 42 Mo. 269; Reppy et al. v. Reppy et al., 46 Mo. 571. And upon the foregoing view of the law, the court erred in refusing to give the instruction asked by appellant, to the effect that respondent could not recover on such counter-claim or off-set. (2) By giving the deed of trust on the homestead the wife negatived any intent on her part to change the policy. The true interpretation of the note and deed of trust, taken together, show that the only security intended to be pledged was the property conveyed. Kimm v. Weippert, 46 Mo. 532. (3) At the time of the execution of the note the policy of insurance was no such existing tangible property as was capable of being bound thereby as the separate property of the wife. Charter Oak Ins. Co. v. Brant, 47 Mo. 419,

Smith & Krauthoff for respondent.

(1) The policy of insurance issued to Mrs. Wolf was a separate estate and subject to all the incidents of such an estate. R. S., secs. 3296, 5981; Baker v. Young, 47 Mo. 453; Pomeroy v. Ins. Co., 40 Ill. 402; Clafin v. Van Waggoner, 32 Mo. 252; Whitesides v. Cannon, 23 Mo. 457; Coates v. Robinson, 10 Mo. 757; Pemberton v. Johnson, 46 Mo. 342; Bank v. Taylor, 62 Mo. 338; Morrison v. Thistle, 67 Mo. 596; Staly v. Ivory, 65 Mo. 74. (2) By executing the note Mrs. Wolf charged her separate estate. Gay v. Ihm, 69 Mo. 584; DeBaum v. Van Waggoner, 56 Mo. 437; Lincoln v. Rowe, 51 Mo. 571; Kimm v. Weippert, 46 Mo. 532; Cook v. Husbands, 11 Md. 503; Koontz v. Nabb, 16 Md. 549; Emerick v. Cookly, 35 Md. 188. A married woman can have a separate estate in choses in action which can be reached in equity when she has created a charge on it. Gage v. Gates, 62 Mo. 412. (3) Mrs. Wolf evidently intended to give greater security to the note by becoming a party to it, and this she could only do by binding her separate estate as a fund which could be resorted to for its payment. Williams v. Jenson, 71 Mo. 681. Statutes of set-off are beneficial acts tending to prevent circuity of action and the speedy settlement of controversies, and courts have always given them a liberal construction. Waterman on Set-off, sec. 24. And when one of the parties is dead, or insolvent, this is absolutely necessary to prevent gross injustice. Byles on Bills, 349; Temple v. Scott, 3 Minn. 419.

MARTIN, C.

The point in controversy in this case arises on a counter-claim. Theodore Seifert, as administrator of Mary Wolf, deceased, sued the defendant on a promissory note, payable to his intestate, in the sum of $2,300. The defendant, in his answer, admits the execution and delivery, denying, however, that it remains unpaid. He pleads payments aggregating in amount about $1,850. He next pleads a counter-claim, wherein he discloses a promissory note in the sum of $453, executed by said intestate, and William Wolf, her husband, payable to one John B. Busch, and by him endorsed and delivered to defendant. It is further alleged that, at the execution and delivery of said last mentioned note, said Mary Wolf was possessed of a certain policy of insurance on the life of her husband in the sum of $3,000, which had been taken out by her husband in the Manhattan Life Insurance Company, of New York, as a provision for her in the event of his death, and which inured to her as of her separate estate; that, after paying all premiums as they became due, said Wolf died, in 1877; and said policy matured and was collected by said Mary Wolf in her life time; that, upon her decease, the proceeds thereof passed into the hands of plaintiff, as her administrator, and remained in his hands as of her separate estate. It is averred that said Mary Wolf, by execution of said last mentioned note, intended to charge, and did charge her interest and estate in and to said policy, and to the proceeds thereof with the debt and obligation evidenced by her said note, by reason whereof the same should be allowed as a counter-claim to the plaintiff's demand and judgment rendered in defendant's favor against said separate estate for any balance remaining unpaid.

The plaintiff, by way of replication, alleges that the said note for four hundred and fifty-three dollars was executed by said William Wolf and Mary, his wife, in consideration of an indebtedness of her said husband to said Busch; that to secure the payment thereof and interest thereon, said William Wolf and Mary, his wife, at the same date with the note, executed and delivered to one Krumsick, as trustee, a deed of trust of even date with the note, whereby they conveyed to said trustee certain lands and premises situated in Franklin county, which they were at the time occupying as their homestead; that by reason of said conveyance said Mary did not intend to charge, and did not charge her said estate in said policy of insurance. Plaintiff denies that she ever intended to charge or ever did charge her said interest in said policy.

The facts, pleaded by both sides, appear in the evidence. The policy of insurance was dated December 19, 1865, and recited that the Manhattan Life Insurance Company of New York, in consideration of the annual payment of $173.34 by Mrs. Mary Wolf, insured the life of William Wolf for the sole use of the said Mary in the sum of $3,000, and agreed to pay to the said Mary, her executors, administrators, and assigns, for her sole use, said sum of $3,000, within ninety days after proof of the death of the said William Wolf; and that in case of the death of the said Mary Wolf, before the death of the said William, the said sum of $3,000 should be payable to her children for their use. It was admitted that Mary Wolf, at her death, left children surviving her. The deed of trust described in the replication was given in evidence. It is dated January 5, 1876, and was recorded January 26, 1876. It is signed by both husband and wife, and purports to convey by covenants of grant, bargain and sale certain improved lots in the town of Pacific, waiving and relinquishing all rights thereto under or by virtue of the laws of the state relating to the exemptions of homesteads. This conveyance is in trust to secure the note described in the counter-claim. The deed contains covenants to keep the building insured and to assign the policies of such insurance in the sum of five hundred dollars, at least, to the party of the third part as further security for the note. It was admitted by the defendant that the property covered by the deed of trust was the homestead of...