Siemers v. Kleeburg

• Decision Date: 31 March 1874
• Citation: 56 Mo. 196
• Parties: PETER SIEMERS, Defendant in Error, v. GEORGE KLEEBURG AND EMELINE KLEEBURG, Plaintiffs in Error.
• Court: Missouri Supreme Court

56 Mo. 196

PETER SIEMERS, Defendant in Error,

v.GEORGE KLEEBURG AND EMELINE KLEEBURG, Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to St. Louis Circuit Court.

Slayback & Hæusler, for Plaintiff in Error.

I. This is an action at law, and defendant Emeline's separate estate can only be reached by equity. (See Riley vs. McCord, 24 Mo., 265; 4 Kent's Com., 192-5; Higgins vs. Peltzer, 49 Mo., 156; Bauer vs. Bauer, 40 Mo., 62.)

II. Defendant, Emeline, upon the facts shown, did nothing to charge her separate estate, as the same was not derived from her husband. (Kinner vs. Walsh, 44 Mo., 65.) In Lincoln vs. Rowe, (51 Mo., 571) the feme covert signed the note, thereby making the debt her own.

III. The acknowledgment of the mortgage by Mrs. Kleeburg was so defective that equity could not cure it. (Wagn Stat., 935, § 14; Raymond vs. Holden, 2 Cush., 264, 271 Bruce vs. Wood, 1 Metc., 542-3.)

IV. Being acknowledged before a justice of the peace, it could not affect the wife's estate (7 Mo., 316). The mode of acknowledgment by married women at date of the certificate was governed by the statute of 1855 (R. C. 1855, Ch. 32, § 35). This was the law up to February, 1864 (Adj. Sess. Acts 1863-4, p. 27). The last named act attempts to retroact, but it cannot cure a deed which was inoperative and void ab initio. (Potter's Dwarr. Stat, 164-5.)

Eber Peacock, for Defendants in Error.

I. A married woman can charge her separate estate for her own debt; and if so, why not secure the debt of her husband? (Whitesides vs. Cannon, 23 Mo., 547; Claflin vs. Van Wagoner, 32 Mo., 252; Kim vs. Weippert, 46 Mo., 532; Schnaider vs. Staihr, 20 Mo., 271; Miller vs. Brown, 47 Mo., 504; 51 Mo., 571.)

II. The words “relinquishes her dower” in the acknowledgment to the mortgage are merely surplusage. (De Lassus vs. Poston 19 Mo., 432.) But we hold the deed would be good without any acknowledgment whatever as between the parties to this action. (Claflin vs. Van Wagoner, 32 Mo., 254.)

III. The trustee could not consistently be a party to this action, for if the purpose in joining him be to call in and pass the fee as well as the equity, in case of sale, as there is in the deed of trust a remainder in trust outstanding, the effect of such action would be to destroy the remainder; otherwise the action would be void.

IV. As to the point that the action is at law, and therefore void as to the wife, it is only necessary to refer the court to the record to see that the whole proceeding is in its nature a proceeding to foreclose an equitable mortgage.

V. A married woman cannot sue or defend without being in court with the husband, except where the two are opposed to each other. (Wagn. Stat., 1001, § 8.)

SHERWOOD, Judge, delivered the opinion of the court.

In 1857, a certain tract of land situated in the county of St. Louis, was conveyed by Joseph Thibault and wife, to Frederick C. Kleeburg “In trust for the following purposes: First, to receive and collect the rents, issues and profits of said property hereby conveyed, and after defraying the costs of repairs upon the same, and taxes and necessary expenses of said property, to pay the said rents, issues and profits to the said party of the third part (Emeline B. Kleeburg) for and during her natural life, upon the receipt of the third party and upon her receipt alone, without any control or interference from the said George Kleeburg, husband of said party of the third part. Second, to hold said property for the use and benefit of such of the children of the said Emeline B. Kleeburg as may be living at the time of her death, and to convey the same in fee simple to such of them as may survive the said Emeline B. Kleeburg and attain the age of twenty-one years,” &c., &c.

On June the first, 1859, George Kleeburg executed and delivered to Frederick Grube his promissory note for $500.00, payable in twelve months, with interest at ten per cent.; and on the fourth of the same month Kleeburg and wife executed and delivered to Grube, a mortgage, purporting to convey the property mentioned in the deed, made to the trustee to secure the payment of said note.

In this mortgage, both the husband and wife joined as grantors, and it and the acknowledgment are in the form usually employed where a married woman designs to convey real estate held in her own right, except that to the certificate of acknowledgment are added the words, “and relinquishes her dower in the real estate therein mentioned.”

Suit was afterwards brought by Peter Siemers, the present plaintiff, who claims to be the purchaser of the note from Grube, against George Kleeburg, his wife, Emeline, and the trustee, Frederick Kleeburg, to foreclose the foregoing mortgage.

The petition in substance states, that Emeline Kleeburg being seized and possessed of certain land, describing that mentioned in the mortgage, executed with her husband a mortgage on that land as security for the payment of the note held by Grube; that the land so mortgaged had been conveyed to the separate use of Mrs. Kleeburg; that the note before maturity was, together with the mortgage, assigned and delivered by Grube to plaintiff; that the note was unpaid, and judgment was asked for the principal and interest of the note, “that the equity of redemption of said mortgage be foreclosed and said land sold to pay said judgment, and for such other and further relief as is demanded in the premises.” The husband and wife filed separate answers. The plaintiff dismissed as to the trustee, and the court rendered judgment for the recovery of the amount of the note and interest yet remaining unpaid, and that the equity of redemption of George Kleeburg and Emeline Kleeburg be foreclosed, and that the mortgaged premises be sold to satisfy the amount decreed to be due and charged on the mortgaged property. It was competent for Kleeburg and his wife to answer separately. Section 8, p. 1001, 2 Wagn. Stat., provides * * * * “In all actions by husband and wife, or against husband and wife, they may prosecute the same by attorney, or they, or either, may defend by attorney,” & c., &c.

The objection to the form of the certificate of acknowledgment of the mortgage is not well taken. The additional words employed therein may be rejected as surplusage. Chauvin vs. Wagner, 18 Mo., 531; De Lassus vs. Poston, 19 Mo., 425.)

The other objection, that at the time the acknowledgment was taken, (June 4, 1859,) a notary public had no authority to take the acknowledgment of a married woman to a deed conveying her own estate, is also untenable. The decision of West vs. Best (28 Mo., 551) which upholds the doctrine contended for by plaintiffs in error, was subsequently...