Black v. Slaton

92 Mo. App. 662, 1902 Mo. App. LEXIS 516

• Court: Missouri Court of Appeals
• Decided: February 25, 1902
• Status: Published

Opinion

GOODE, J.

According to the agreed statement of facts on which this cause was tried, a tract of land was conveyed to the plaintiff, Rebecca A. Black, in 1896, for the consideration of two hundred dollars, by J. "W. Scarsbrough. She was then and still is married to George "W. Black and living with him in conjugal relations. Nothing is shown about who furnished the money paid for the land, whence it was obtained, or that it was her separate means.

Plaintiff, her husband and children moved on to the land when said conveyance was made and remained in possession until they were removed from it by the sheriff of Stoddard county in 1900, by virtue of a writ of possession based on a judgment in an ejectment action instituted in 1898 by Sopbia E Stevens and others against George Black, and the defendant Slaton put in possession as tenant of the successful plaintiffs in said ejectment case.

After being evicted, plaintiff instituted this forcible entry and detainer proceeding to recover the premises.

The questions are: Did the writ of possession issued on the judgment against her husband justify the sheriff in evicting the plaintiff, who owned the land in fee ? If not, can she maintain this action to get back the possession in her own name ?

Both questions depend on the same legal doctrine and both might readily be answered but for the revolution wrought by the married woman’s act, in the estate, rights, and powers of a husband in his wife’s property. Prior to that legislation, the husband was the proper person to sue and be sued in ejectment for the possession of his wife’s lands. Bledsoe v. Sims, 53 Mo. 305; Bobb v. Taylor, 25 Mo. App. 583; Meriwether v. Howe, 48 Mo. App. 148. According to the decisions in this State, the husband was the proper party to conduct all litigation affecting the possession, though the generally prevalent rule at common law was that the wife must be joined in actions to recover possession.

Appellant’s counsel is wrong, we think, in his contention that the rule is changed, as to this case, by section 4340 of the Revised Statutes of 1899 (B. S. 1889, sec. 6869), because that statute applies only to real estate belonging to a woman at her marriage or which may have come to her during coverture by gift, bequest, inheritance, or by purchase with her separate money or means. The land in controversy was not plaintiff’s when she married nor is it shown she obtained it afterwards in either of the modes specified in said section. In the absence of proof of some kind to the contrary, the presumption is the husband paid the purchase money. Sloan v. Torry, 78 Mo. 625; Garrett v. Wagner, 125 Mo. 461; Ryan v. Bradbury, 89 . Here there is not shown even a recital in the deed to her that she paid the consideration.

The question hinges, then, on the section which immediately precedes the one above cited, and is as follows:

“The rents, issues and products of the real estate of any married woman, and all moneys and obligations arising from the sale of such real estate, and the interest of her husband in her right in any real estate which belonged to her before marriage, or which she may have acquired by gift, grant, devise or inheritance during coverture, shall, during coverture, be exempt from attachment or levy of execution for the sole debts of her husband; and no conveyance made during coverture by such husband of such rents, issues, and products, or of any interest in such real estate, shall be valid, unless the same be by deed executed by the wife jointly with the husband, and acknowledged by her in the manner now provided by law in the case of the conveyance by husband and wife of the real estate of the wife: Provided, such annual products may be attached or levied upon for any debt or liability of her husband, created for necessaries for the wife and family, and for debts for labor or materials furnished upon or for the cultivation or improvement of such real estate. R. S. 1899, sec. 4339 (R. S. 1889. sec. 6868).

However plausible or persuasive may be the argument that the foregoing language when properly interpreted, requires that a wife be made a party to any litigation designed to disturb her occupation and enjoyment of lands which she owns in fee, and that she is the only necessary party, the point seems to have been positively adjudicated the other way by our Supreme Court in cases which considered the effect on.the wife’s right of this very section, which is no recent enactment, but was adopted in 1865 and is found in the General Statutes of that year. '

The question was passed on in Rust v. Goff, 94 Mo. 511, where it was ruled that the husband was the proper and only party to be a. defendant in a suit for lands claimed to belong to bis wife, and tbat tbe trial court did not err in refusing to make ber a party defendant, tbougb sbe moved for tbat purpose.

In Evans v. Kunze, 128 Mo. 670, an action instituted in 1891, it was decided tbat a husband is entitled to tbe possession of his wife’s lands and may sue in ejectment therefor without joining ber as co-plaintiff.

Mueller v. Kaessmann, 84 Mo. 318, comments on tbe statute in question and announces the same rule.

In Flesh v. Lindsay, 115 Mo. 1, the previous decisions on tbe subject are cited and their effect summed up in an opinion by Judge Buegess as follows:

“It has been held by this court tbat this is a disabling statute, and tbat by its provisions tbe husband is shorn of all bis marital rights at common law and rendered powerless to bind, charge or convey, or in any way incumber tbe real property of bis wife except by deed duly executed and acknowledged in conjunction with ber.. . . While it is held tbat this statute deprives tbe husband of all power to convey or dispose of bis wife’s real estate without joining ber with him, it is also held tbat, in actions of ejectment to recover tbe possession thereof, be may sue in his own name and tbat bis wife is not a necessary party plaintiff with him.It necessárily follows from these decisions tbat tbe right of tbe husband to the possession of his wife’s real property as it existed at common law has not been taken away by this statute.”

The common-law rule as declared in this State was, that tbe husband was entitled to the possession and was the party to sue and be sued, for it; and if his right in respect to the possession remains intact, despite the statute we are considering, as the case last cited expressly decided, he is still the proper party, and, hence, the writ issued on the judgment against plaintiff’s husband in the ejectment suit was a sufficient warrant to tbe sheriff to dispossess her and turn ber land over to-tbe defendant as tbe tenant of tbe ejectment plaintiffs.

It is strange that tbe Legislature should confer such sweeping and well-nigh exclusive powers and rights on a married woman, in regard to tbe enjoyment, conveyance and disposition of ber real property and its rents and profits, as were conferred by said section, and yet expose ber to the danger of losing them all by litigation to which she is not and can not become a party. Yet such seems to be tbe state of tbe law as to lands not covered by section 4340 of tbe Revised Statutes of 1899, as to tbe effect of which we make no decision, for it does not affect tbe present controversy.

Tbe judgment is affirmed.

Bland, P. J., and Barclay, J., concur.