Wilcox v. Todd

• Decision Date: 30 April 1877
• Parties: CLARA WILCOX, et al., Respondents, v. ALBERT TODD, et al., Appellants.
• Court: Missouri Supreme Court

64 Mo. 388

CLARA WILCOX, et al., Respondents,

v.ALBERT TODD, et al., Appellants.

Supreme Court of Missouri.

April Term, 1877.

Appeal from St. Louis County Circuit Court.

E. P. McCarty, Jas. O. Broadhead, Crews & Laurie, for Appellants, cited: Kimm vs. Weippert, 46 Mo. 532; Whitesides vs. Cannon, 23 Mo. 457; Claflin vs. Van Wagoner, 32 Mo. 252; Gahn vs. Niemcewicz's Ex'r, 11 Wend. 312.

Martin & Lackland, for Respondents, cited; Gahn vs. Niemcewicz's Ex'r, 3 Paige, 614; John vs. Reardon, 11 Md. 468; Vartie vs. Underwood, 18 Barb. 561; Fitch vs. Cotheal, 2 Sandf. 29; Ten Eyck vs. Holmes, 3 Sandf. 428; Wright vs. Austin, 56 Barb. 13; Loomer vs. Wheeler, 3 Sandf. 135.SHERWOOD, C. J., delivered the opinion of the court.

One of the plaintiffs, Jeremiah Wilcox, owned a piece of property on Third street, in the city of St. Louis. His wife, Clara, owned another piece on Broadway. Her husband borrowed $15,000, and to secure the debt executed a deed of trust to Todd as trustee, whereby was conveyed to the latter the Third street property, as well as that on Broadway, the wife joining in the conveyance. Subsequently, the husband borrowed of Ignacy Sumowski $6,000 more, executing a second deed of trust, on the Third street property, to Jno. Wickham as trustee. Defendants, Maud & Hastings, who are creditors of Wilcox, became the purchasers of the Third street property, when sold by Wickham, under the second deed of trust. The court below, on the application of the wife, as the surety of her husband, decreed that Todd, the trustee, should first sell the Third street property, before resorting to that of the wife, and enjoined Maud & Hastings from interfering with her rights, etc., etc. From this ruling defendants appeal.

Leaving undetermined the question of the husband's competency as a witness in this case, it is enough to say that the wife, being the real party in interest, was competent to testify (Buck vs. Ashbrook, 51 Mo. 529, and case cited; Quade vs. Fisher, 63 Mo. 325); and her testimony clearly establishes that she, in conveying her property on Broadway, by the deed of trust, made by herself and husband to Todd, the trustee, whereby the Third street property was also conveyed, only occupied the attitude of surety towards her husband. And when such a relation is established the law is well settled, that the wife may as readily avail herself of all the beneficial rights and remedies, conferred thereby, as any other surety whatsoever. And there is frequent application of the equitable rule which primarily throws the burden of the debt on the property of the principal debtor, and exhausts that fund in exoneration of the estate of the surety. The doctrine here asserted, both with regard to ordinary sureties and also to the wife when occupying such an attitude, finds abundant recognition in the following authorities:

Niemcewicz vs. Gahn, 3 Paige, 614; S. C., 11 Wend. 312; John vs. Reardon, 11 Md. 465; Sto. Eq. Jur. §§ 642, 1373; Wright vs. Austin, 56 Barb. 13.

The equity of the wife in this regard is paramount to the claim of a creditor who has a general lien on the...