Wharton v. Citizens' Bank

• Decision Date: 01 April 1929
• Docket Number: No. 16417.,16417.
• Citation: 15 S.W.2d 860
• Parties: WHARTON et ux. v. CITIZENS' BANK OF BOSWORTH.
• Court: Missouri Court of Appeals

15 S.W.2d 860

WHARTON et ux. v. CITIZENS' BANK OF BOSWORTH.

No. 16417.

Kansas City Court of Appeals. Missouri.

April 1, 1929.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

Suit by Samuel Wharton and wife against the Citizens' Bank of Bosworth, which filed a cross-bill. From the decree rendered, defendant appeals. Reversed and remanded, with instructions.

Franken & Timmons, of Carrollton, for appellant.

S. J. & G. C. Jones, of Carrollton, for respondents.

BARNETT, C.

This is a suit to ascertain title; but the issues which were tried were tendered by a cross-bill. Plaintiffs are husband and wife. They filed a petition in which they alleged that they were the owners of certain real estate as tenants by the entirety that defendant bank claimed some estate, interest, lien, or claim to such real estate, but had no such interest, and that defendant's claim cast a cloud upon the title. It was further alleged that the plaintiffs were informed and believed that defendant claimed a lien or incumbrance against the estate on account of a judgment rendered in the circuit court of Carroll County, Mo., in favor of defendant bank and against the plaintiff Princis Wharton, but that such judgment did not constitute a valid lien against the real estate.

Defendant filed an answer and cross-bill in which it was admitted that plaintiffs were husband and wife and that defendant had obtained its judgment against the wife, Princis Wharton, and that defendant claimed a lien upon the real estate described in the petition. The answer further alleged that the plaintiffs borrowed money from the defendant for the purpose of paying interest on a loan upon said real estate at a time when they owned the real estate as tenants by the entirety; that said loan was renewed by giving a new note therefor; and that the judgment was obtained upon the renewal note against the wife, Princis Wharton. It was alleged that the notes were executed by both of the plaintiffs and that defendant was "looking to the real estate described in plaintiffs' petition, held as tenants by the entirety by plaintiffs, as property out of which they could secure the repayment of said loan, and loaned the money to plaintiffs and required both of plaintiffs to sign said note in order that said land could be held and sold upon a judgment secured upon said notes or either of them."

The answer further alleged that the plaintiff Samuel Wharton was adjudged a bankrupt by the District Court of the United States for the Western District of Missouri, and that because of such an adjudication judgment could not be obtained against both of the plaintiffs, but that the debt for which the note was given was a joint debt and the note given therefor was joint and several, and that except for said bankruptcy proceedings a joint judgment would have been obtained against both plaintiffs; that the land described in the petition was the property relied upon by defendant at the time of extending credit to the plaintiffs as the property out of which the debt could be made; that prior to the adjudication of bankruptcy the real estate was liable to be sold under execution upon a joint judgment against the plaintiffs, and that said real estate was still liable to such sale, except for such bankruptcy proceedings; that the bankruptcy proceedings were voluntary proceedings by plaintiff Samuel Wharton, and that he had thus by his voluntary act deprived defendant of its right to obtain a joint judgment against the plaintiffs, and that the action of Samuel Wharton in securing the adjudication of bankruptcy was done with fraudulent intent and for the purpose of depriving defendant of its right to secure a joint judgment and to have the real estate sold under execution; that the plaintiff Princis Wharton had no other property out of which defendant's debt might be made, and that by reason of such facts defendant had an equitable lien upon the premises to secure the payment of said note, and that defendant had no adequate remedy at law. The cross-bill prayed that the court adjudge and decree a lien upon the real estate in favor of defendant and that the lien be enforced and the real estate sold to satisfy the same, together with all interest and costs of suit, and defendant prayed for such other and further relief as to the court should seem meet and proper. The reply was a general denial.

The evidence justified a finding that all of the allegations of fact in the cross-bill were true. The court rendered a decree, which, omitting the findings of fact, is as follows:

"Wherefore the court ascertains, adjudges, determines and defines the title to said real estate to be, that plaintiffs herein are the sole and exclusive owners thereof as tenants by the entirety and that defendant has no estate, title, lien, claim or interest whatever in and to said real estate or any part thereof.

"It is further ordered and adjudged that said judgment so rendered in favor of the Citizens' Bank of Bosworth (defendant herein) against Princis Wharton (one of the plaintiffs herein) at the January term, 1928, of this court be and the same is hereby declared to not create any lien, claim, title or incumbrance on said real estate hereinbefore described or any part thereof, and it is further ordered, adjudged and decreed by the court that any apparent lien which said judgment purports to create or any lien or incumbrance claimed by the defendant, the Citizens' Bank of Bosworth, on account of said judgment, be and the same is hereby canceled and annulled.

"It is further ordered and adjudged that the defendant, the Citizens' Bank of Bosworth, be and it is hereby estopped, barred, and precluded from setting up any claim, lien or incumbrance against said real estate or any part thereof on account of said judgment."

Defendant's motion for new trial was filed and overruled, and defendant appealed.

Opinion.

It is always our duty to ascertain whether or not we have jurisdiction of an appeal, whether the question is raised or not. At first this was a suit to ascertain title to real estate. However, the answer and cross-bill only set up the claim that defendant was entitled to a lien upon the land, and this was the only question adjudicated. Our Supreme Court has held that where the plaintiff simply seeks to charge a demand upon certain real estate that the Supreme Court has no jurisdiction of the appeal upon the ground that the title to real estate is involved. McGregor v. Pollard, 130 Mo. 332, 32 S. W. 640. That court has also held that where plaintiff files a petition to ascertain title to real estate, but the only answer filed in the case sets up the sole claim that the defendant is the owner of a tax bill which defendant claims to be a lawful lien upon the plaintiff's land, then the Supreme Court in determining its jurisdiction looks to the real issue and the real question that was decided, and not to abandoned or fictitious issues; that such a suit is merely to declare or determine the validity of a lien upon real estate; that the Supreme Court has no jurisdiction upon the ground that the title to real estate is involved. Platt v. Parker-Washington Co., 235 Mo. 467, 139 S. W. 124. We therefore hold that this cause was properly appealed to this court.

At common law man and wife were considered as one. In Missouri the enabling statutes have given a married woman power to contract and to convey her property; but so far as estates by the entirety are concerned, the ancient conception of man and wife still lives. As one, they are endowed with characteristics of a legal entity that has power to own real and personal property, subject the property to liens and charges, and to contract debts, which, when reduced to judgment against the entity (a joint judgment against both spouses), will permit its property to be sold under an execution on that judgment. None of these things may be accomplished by dealing with or against either spouse, but only by dealing with or against them jointly. But man and wife do not constitute an artificial person. It is impossible to obtain a judgment against the entity, independent of a judgment against its natural members. The judgment must be against the husband and wife. Such a judgment has all the characteristics of a joint judgment against codebtors, so that the property of each may be seized under execution for the satisfaction of the full amount of the judgment. But it has another characteristic. It will support the levy of an execution upon the estate by the entirety. There is no other method of subjecting this estate to the satisfaction of a debt,...