Terry v. Wilson

• Decision Date: 31 October 1876
• Parties: J. H. TERRY, TRUSTEE, ETC., Appellant, v. ANDREW WILSON, Respondent.
• Court: Missouri Supreme Court

63 Mo. 493

J. H. TERRY, TRUSTEE, ETC., Appellant,

v.ANDREW WILSON, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jefferson Circuit Court.

John H. Thomas & Bro., for Appellant.

I. In the absence of fraud, the deed of trust read in evidence conveyed the legal title to the property in controversy.

II. A husband can bind himself in equity by borrowing money from his wife, and giving her his note for it. (Huber vs. Huber, 10 Ohio, 371; Manning vs. Style, 3 P. Williams, 337; Maraman's Adm'r vs. Maraman, 4 Metc. [N. Y.] 84; Deming vs. Williams, 26 N. H. 226; Wood vs. Warden, 20 Ohio, 518; Doyle vs. McGuire, 38 Iowa, 410; see also, 2 Sto. Eq. §§ 1372, 1373, 1380; 2 Kent Com. 147, 154, 163.)

III. Gibson never reduced the money and property for which he gave the note and deed of trust to his marital possession. Conversion by the husband of the wife's personal property is not a reduction to his possession, but only evidence of it, and therefore conversion may be explained by other evidence, negativing the husband's intention to reduce to possession in such a manner as to transfer title; and the giving of a note, receipt or certificate for the money or property, and even stating verbally before and after the receipt of the money or property that it belonged to the wife, have been held sufficient to rebut the presumption that the husband intended to reduce the money or property to his marital possession. (Bishop Mar. Wom. §§ 120-23; Hind's Est., 5 Whart. 138; In re. Gray's Est., 4 Penn. 327; 31 Penn. 450; Tennison vs. Tennison, 46 Mo. 77; Hall vs. Young, 37 N. H. 147; George vs. Cutting, 46 N. H. 130; Tillman vs. Tillman, 50 Mo. 40; In re. Goebenaur's Est. 23 Penn. 460; Waddingham vs. Loker, 44 Mo. 132; McLaran vs. Mead, 48 Mo. 115.)

IV. This note and deed of trust created in Mrs. Gibson a separate estate in the money and property she delivered to her husband. While in conveyances from third persons to a married woman, appropriate words must be used in order to create in her a separate estate, yet a conveyance by a husband to his wife is presumed to be to her separate use, and likewise the giving of a note to a wife by a husband for money she loaned him is presumed to be to her separate and sole use; for by giving his note to her, it must be presumed he intended to pay her the money to her separate use; otherwise his note, which he must have designed to have some effect, can have none in law or equity. (Huber vs. Huber, supra; Manning vs. Style, supra; Maraman's Adm'r vs. Maraman, 4 Metc., supra; Seins vs. Ricketts, 35 Ind. 181; Simmons vs. McElwaine, 26 Barb. 419; Wilder vs. Brooks, 10 Minn. 50.)

V. The above authorities establish the doctrine, beyond controversy, that the note of Gibson, given for property and money of the wife loaned, is valid in equity, and it follows, as a necessary corollary from this, that the husband could convey the property in question to a trustee to secure his indebtedness to his wife, and that the conveyances transfer to him (the trustee) a legal title. While husband and wife cannot contract, so as to bind themselves at law, yet this can be done through the medium of trustees. Terry, therefore, held the legal title to the property mentioned in the deed of trust to secure the wife's equitable claim, evidenced by the note. (1 Bish. Law Mar. Wom. § 712.)

VI. The sale in this case was void, for the reason that Mrs. Gibson claimed the property as specially exempt from levy and sale, and of this claim respondent had notice at the time of the sale. (Wagn. Stat. 603, §§ 9, 11, 12, 13.)

Amos Green, with Samuel Byron, for Respondent.

I. The mule in controversy belonged to Parolee Gibson before her marriage with Robert W. Gibson, hence, the title thereto

vested in her husband upon the marriage, and such property was therefore liable for his debts contracted after such marriage. And the mule having been sold under an execution against Robert W. Gibson, and bought by the respondent, his title thereto is indisputable. (Hendrickson vs. St. Louis & I. M. R. R. Co., 34 Mo. 188; Smith vs. Sterrett, 24 Mo. 260.)

II. The deed of trust is invalid to vest said property in such trustee, as the note from husband to wife is void at law as a contract.

III. Said deed of trust is not and does not even have the semblance of being intended for a separate property deed, conveying said property to said trustee, for the sole and separate use of Parolee Gibson. It merely conveys the property to the trustee to hold, with power to sell when the note from R. W. Gibson to his wife Parolee becomes due, and then to pay over the money to the wife, which (as soon as she gets it) becomes instanter the property of the husband. It is manifest such a transaction cannot be sustained at law. And, being void in law, no title to the property in question vested in the trustee; and, having no legal title, he can maintain no action to recover the property.

IV. The trustee has neither the legal nor equitable title to said property. The deed not being a separate property deed, does not invest him with the equitable title, and being invalid at law, he has no title whatever to the property. The deed is invalid, because it is given to secure the payment of a void debt--a promissory note from husband to wife. (Woodford vs. Stephens, 51 Mo. 443.)

HOUGH, Judge, delivered the opinion of the court.

This was an action under the statute in relation to the claim and delivery of personal property.

On the 17th day of April, 1871, R. W. Gibson executed and delivered to his wife, Parolee Gibson, his promissory note for the sum of $3,000, payable one year after date, and to secure the payment thereof, executed on the same day a deed of trust, in which his wife joined, whereby he conveyed to the plaintiff, Terry, as trustee, one hundred and sixty acres of land, a number of horses, mules and other live stock and certain farming implements, with power to sell the same in event of default in the payment of the note, and to apply the proceeds of such sale to the payment thereof.

At the time of this conveyance Gibson was indebted to one Jennie for merchandise, and on the 22d day of September, 1871, executed his note for the amount of said indebtedness. Judgment was rendered against Gibson on said note, and on the 19th of March, 1872, execution was issued which was levied upon one of the mules conveyed to Terry by the trust deed aforesaid, and on the 17th day of June, 1872, said mule was sold under said execution to the defendant, Wilson.

Default having been made by Gibson in the payment of the note to his wife at its maturity, and the property conveyed in the trust deed never having been sold, Terry, the trustee, brought the present suit to recover the possession of the mule bought by the defendant Wilson, at the execution sale. The trust deed was duly recorded on the 21st of April, 1871. There was some testimony tending to show that the deed of trust included all the property of R. W. Gibson. Mrs. Parolee Gibson testified that she and her husband, R. W. Gibson, were married in 1869; that at the date of the marriage she had $2,100 in money, part of which she had herself earned, and a part she had received from her stepfather; that she also owned certain personal property, consisting of a wagon, horses, sheep and the property sued for, which added to the $2,100, made the sum of $3,000, for which her husband gave the note, which the trust deed was made to secure. She further stated that she kept the $2,100 in her hands until the note and trust deed were given.

The plaintiff also claimed that the mule was exempt from execution, but as we do not think that the personal privileges in this regard of the grantor in the trust deed can be asserted by the trustee, this point will not be further noticed.

There was a verdict and judgment for the defendant from which the plaintiff has appealed.

The defendant contends that the note from Gibson to his wife was a nullity, and that the deed of trust made to secure it must fall with the note.

The deed from Gibson to Terry cannot be regarded as conveying the property embraced in it for the sole and separate use of Mrs. Gibson. It was an ordinary trust deed with power in the trustee to sell the property conveyed for the payment of the note secured thereby. It would have been equally appropriate i all its parts as security for the payment of a note to a person other than his wife. The property was...