First National Bank v. Kirby

190 S.W. 597, 269 Mo. 285, 1916 Mo. LEXIS 134

• Court: Supreme Court of Missouri
• Decided: December 20, 1916
• Status: Published

Opinion

RAILEY, C.

This is the second action brought by plaintiff, against defendants, in the circuit court of Knox County, Missouri, to foreclose the same mortgage on 200 acres of land in said county, the legal title to which stood in the name of defendant, Charles W. Kirby, at the time of the execution of said mortgage. The defendants are husband and wife, and reside at Stronghurst, Illinois. Plaintiff is engaged in the banking business in said city.

On October 15, 1909, defendants executed and delivered to Elmer E. Taylor, four promissory notes, aggregating $7500, due five years after date, which were attempted to be secured by a mortgage, for said amount, on the Knox County land aforesaid. Said notes and mortgage were signed by defendants, but the mortgage was ne.ver acknowledged. The above notes and mortgage were duly assigned to the plaintiff, and the latter is still record owner thereof.

On April 12, 1911, plaintiff instituted in the circuit court of Knox County aforesaid, an action — numbered xn said court 6901 — against the present defendants to foreclose said mortgage. Defendant Adda Kirby filed her separate answer in said cause, and alleged therein that at the time said mortgage was signed she was the wife of her co-defendant; that they were then the owners of said 200 acres by the entirety; that the loan was for the sole use of her husband and that she received no part of the money advanced; that the deed was never acknowledged by her; that the money loaned by Taylor to her husband belonged to plaintiff, and that the loan was made through Taylor to avoid the provision of the National Bank Act, limiting the amount the bank might loan to one person to ten per cent upon its capital, which was only $35,000; that the plaintiff had no lawful authority to loan upon Missouri lands as security; that for these reasons the mortgage was void and she asked that the same be cancelled. Elmer E. Taylor was the cashier of plaintiff, and the -$7500 loaned was the property of the latter.

On December 22, 1911, the circuit court, in disposing of case 6901, rendered a judgment and decree of foreclosure against the interest of defendant Charles W: Kirby in the land aforesaid, but as a part of the same judgment decreed that said mortgage was never acknowledged by said defendants or either of them, and that said “mortgage deed is null and void and of no effect as to the interest of said Adda Kirby in and to all said real estate.” The plaintiff in said cause filed a motion for a new trial, setting up that the judgment on all issues should have been for plaintiff against both defendants, which was overruled, and an appeal taken to this court. We reversed and remanded the cause, for the reason that there was no final judgment rendered in the case discharging Adda Kirby from the suit, or even awarding her costs. [Bank v. Kirby, 175 S. W. 926.] We likewise held that: “No cause of action existed in favor of the plaintiff at the time the suit was brought.” The case having been tried throughout on the theory that defendants were tenants' by the entirely, we expressed our views of the law upon this subject, but did not consider or decide whether the inchoate right of dower of defendant Adda Kirby ivas conveyed by said mortgage.

On March 23, 1915, plaintiff instituted, in- the circuit court of Knox County aforesaid, the present action, against Kirby and wife, to foreclose said mortgage— the foregoing notes having become due — and the defendants filed separate answers in said cause..

The opinion and mandate of this court, in case 6901, was filed in the circuit court of Knox County, on May 1, 1915. On June 10, 1915, plaintiff dismissed said cause, as to defendant Adda Kirby.

Charles W. Kirby filed his separate answer in the present suit, on June 7, 1915, and pleaded former adjudication.

(1) The separate answer of Adda Kirby filed herein, among other things, sets out the proceedings in case 6901 supra, which culminated in a decree of foreclosure of her husband’s interest in said land, which was not appealed from. (2) She pleads said judgment in her own behalf, holding said mortgage’ to be nidi and void as to her interest in said land. (3) She avers that John W. Harkness and wife, on March 2, 1896, conveyed the land in1' controversy to Charles W. Kirby, and that she signed said notes solely as the wife of said co-defendant. (4) She alleges that she has no interest in said land that is subject to sale under said trust deed or any decree rendered thereon, etc. (5) She avers that said cause 6901 was, on June 10, 1915, dismissed as to her; and that as plaintiff foreclosed its deed of trust, as to the interest of Charles W. Kirby in said land, it cannot split its cause of action and foreclose said deed of trust as to. her inchoate right of dower in said land, or any other interest she may have therein.

Plaintiff’s reply sets out in substance the proceedings in case 6901 aforesaid.

The testimony taken in the trial of case 6901 was preserved by bill of exceptions and offered in. evidence without objection in the present case.

,J. C. Dorian testified at the former trial, as shown by the above bill of exceptions, that $500 would be a reasonable attorneys’ fee for foreclosing said mortgage, when contested.

At the conclusion of the testimony, defendant Charles W. Kirby interposed a demurrer to the evidence, which was overruled. Defendant Adda Kirby asked the court, before a decision was announced, to find the facts as stated in her written request, numbered 1 to 8 inclusive. Paragraph two of the proposed finding of facts, asks the court to determine: “(2) Whether the defendant, Adda Kirby, has any other or greater right in the real estate in question than an inchoate right of dower?” The court refused to answer this question and an exception was saved as to its ruling thereon. Thereupon, defendant Adda Kirby asked fourteen instructions, numbered from 1 to 14 inclusive. The first and tenth were given as asked, and the remainder refused. The first, in substance, declared that the mortgage in controversy was never acknowledged by Adda Kirby. The tenth, in substance, declared that the present suit could not be maintained against defendant Charles W. Kirby.

The trial court, in its decree, after setting out its findings of facts as to the uneontroverted testimony, found that the above mortgage was never acknowledged by defendants or either of them, “but the court finds and holds that said diced of trust or mortgage deed is a good and sufficient conveyance as between the parties to this suit, and that same is in full force and effect as a deed of tryst ór mortgage, and is binding upon the interests of said defendants in and to all above described real estate.” The court found, that the defendant Charles W. Kirby should go hence without day and recover his costs. The court further found: “that the said deed of' trust or mortgage deed is in full force and effect, and is binding upon the interest of the defendant Adda Kirby; that all of her interest of whatsoever hind or nature in and to the real estate described in said deed of trust or mortgage deed . ... be sold by the sheriff of Knox County, Missouri, at public vendue, to the highest bidder,” etc. An attorneys’ fee of $500 was taxed in favor of plaintiff’s counsel for prosecuting this action.

Defendant Adda Kirby, in due time, filed her motions for a new trial and in arrest of judgment. Both motions were overruled and the cause duly appealed by her to this court.

acknowledged Mortgage. Dower: UnI. It is insisted by appellant that the execution, by herself and husband, of the unacknowledged mortgage read in evidence, and sought to be foreclosed in this action, was ineffectual to pass her inchoate right of dower in the land der scribed therein. On the other hand, respondent contends that section 8304, Revised Statutes 1909, made the wife’s inchoate right of dower a part of her estate and conferred upon her the right to sell and dispose of the same by an unacknowledged deed, without any reference to her husband.

We have examined with care and a great deal of interest the laws of many States relating to married women, but have been unable to find therein any principles announced which have not already been considered by the appellate courts of this State in dealing with the above subject. It would serve no good purpose to review the legislation in this State relating to the law of married women, as the subject was fully considered in the two cases of Brown v. Dressier, 125 Mo. 589, and Farmers Exchange Bank v. Hageluken, 165 Mo. 443. In each of these cases, the wife undertook to convey her legal estate, without her husband joining in the conveyance. In each case, the wife had acquired title to the real estate attempted to be conveyed, after the passage of the Married Woman’s Act supra.

In Brown v. Dressier, Brace, J., speaking for this Division, ruled that a married woman could convey her real estate held as at common only by jointly with her husband, executing, acknowledging and certifying the conveyance, as required by section 2396, Revised Statutes 1889. All the then members of this court concurred in Judge Brace’s opinion. The same legal proposition came before the Court in Banc in the ID -eluken case supra, and the Brown-Dressier decision was in terms overruled, in an opinion filed by Judge Sherwood, to which Judges Brace, Valia ant and Gantt dissented.

While the principles of law declared in the Hageluken case have since been followed by this court, and are now considered as settled, yet a careful consideration of these two cases will indicate that the able members of the Supreme Court who were then on the bench were nearly evenly divided over the. question, as to whether the wife could convey her legal estate, acquired subsequently to the adoption of the Married Woman’s Act of 1889, without her husband joining in a deed, and acknowledging same with the wife.

We are now asked to go one step further, and hold that the General Assembly of this State, in the adoption of section 8304 supra, intended to make the wife’s inchoate right* of dower a part of her separate or legal estate, with the right to sell and dispose of same, without her husband joining in the conveyance, and without any acknowledgment upon the part of either. If section 8304, supra, contemplated that the wife, under the circumstances of this case, should be placed upon the same plane as an umnarried woman, with full power and authority to sell and convey her inchoate right of dower, without her husband joining in the' conveyance, and without any acknowledgment of the instrument on her part, it would undoubtedly follow that such inchoate right of dower could be levied-upon and sold under 'an execution issued in due form against the wife. Should the inchoate right of dower be sold under execution against her, and a deed be made to the purchaser therefor, it would practically destroy, in many cases, the commercial value of the fee simple title. The owner of the fee, in case he desired to sell, would be left at the mercy of an unfriendly owner of the inchoate right of dower, and he might be compelled to pay an exorbitant consideration for a release of such interest. Was it not the intention of the lawmaking power to require the husband and wife to join in a deed when disposing of the inchoate right of dower, in connection with the estate conveyed, in order to avoid the injurious consequences that might follow, and especially, as above indicated?

Section 8304, supra, does not require the husband to join the wife in respect to any conveyance made thereunder. The requirement so to do, where the inchoate right of dower is attempted to be disposed of, is found in section 2788, Revised Statutes 1909, where it is said:

“A husband and wife may convey the real estate of the wife, and the wife may relinquish her dower in the real estate of her husband, by their joint deed acknowledged and certified as herein provided. ’ ’

Section 901, Revised Statutes 1899, was repealed by the Act of 1905, Laws 1905, page 94, and said section 2788 enacted in lieu thereof. Hence, we find that the General Assembly, in 1905, after the passage of the Married Woman’s Act of 1889, in the form of a new enactment, still required the husband and wife to join in the conveyance, where the inchoate right of dower is conveyed, and to have the conveyance acknowledged by both. While the Legislature, in the repeal of section 901 of Revised Statutes 1899, and the enactment of 1905 in lieu thereof, as it appears in section 2788, Revised Statutes 1909, used the same language, in regard to requiring husband and wife to join in the conveyance and acknowledge same when the inchoate right of dower is attempted to be disposed of, as appeared in the statutes under the head of “Conveyances,” which were in existence prior to the adoption of the Married Woman’s Act, yet it is persuasive evidence of the fact, that the attention of the General Assembly was called to this reenactment of the old law, notwithstanding the Married Woman’s Act, previously adopted. If the lawmakers had intended that the inchoate right of dower might be disposed of by the wife, as contemplated in section 8304, supra, it would have been an easy matter to have said so, and to have refrained from re-enacting the old law, which required the husband and wife to join in the deed and acknowledge same, etc.

We have no disposition to curtail, by judicial construction, the beneficent provisions of section 8304, supra, enacted for the benefit of married women, in respect to their contractural and property rights. Nor, on the other hand, are we allowed to invade the province of the lawmaking power, and give to said section a construction at variance with the intention of the lawmakers, in respect to same. Appellant simply had an inchoate right of dower in the real estate described in the mortgage. It is a contingent right, the value of which depends wholly upon the death of the husband. [Teckenbrock v. McLaughlin, 246 Mo. 711.] It may be terminated at any time by the death of the wife. It is in no sense a vested right growing out of the contract of marriage, but is a mere expectancy or possibility incident to the marriage relation, contingent on her surviving the husband. ,

The General Assembly of this State, after adopting the Married Woman’s Act of 1889, continued, throughout subsequent revisions, section. 2788, Revised- Statutes 1909, and other sections, which contemplate that the wife, in order to convey her inchoate right of dower, must join in a deed with the husband and both must acknowledge same. We think it would be doing an injustice to the lawmakers of this State to hold that in the enactment of section 8304, supra, it was intended to classify .the inchoate right of dower as the separate property or legal estate .of a married woman, so as to make it liable, on execution, for the payment of her debts.

It was frankly admitted by respondent’s counsel at the oral argument before us, that the inchoate right of dower belonging to a married woman could not be levied upon and sold under execution for the payment of her debts, but it was contended that she had the legal right, under section 8304, to sell or dispose of same, if she saw fit to do so. This latter contention' does not appeal to us as being sound. If the Legislature, in the enactment of section 8304, intended that the inchoate right of dower should be classed as a part of the married woman’s property attempted to be covered by said section, then she has the legal right to convey same by her own unacknowledged deed, without any reference to her husband. Considering the dower interest as property, under said section, it is clearly vendible under execution against the wife; and it would be illogical to hold otherwise. We are satisfied that the Legislature never intended section 8304, to cover the dower, interest of a married woman in her husband’s real estate, but on the contrary, intended that the conveyance of same should be governed by the provisions of section 2788, Revised Statutes 1909, which requires the husband and wife to join in the deed and acknowledge shme.

On the undisputed facts disclosed by the record, we • hold, as a matter of law, that the act of appellant in signing the unacknowledged mortgage in controversy, was ineffectual to pass her inchoate right of dower in the real estate described in the mortgage.

pleadings. II. We have carefully read and considered all of the authorities in the respective briefs on file, as well . as those referred to by counsel for respondent since the oral argument of this cause. The Missouri cases cited do not deal with the question as to whether section 8304, supra, authorizes a married worn-an to convey her inchoate right of cloiuer in her husband’s real estate, without joining the husband in a conveyance, etc. On the contrary, the cases to which we are referred relate to the right of the wife to dispose of her legal estate without joining her husband in the conveyance 'of same.

The case of Bank of Stronghurst v. Kirby, 175 S. W. 926, was disposed of in the trial court on the theory that these defendants were the owners of the land described in the mortgage as tenants by the entirety. The case was tried here upon the same theory. We reversed and remanded the case because it was prematurely brought, and because no final judgment had been rendered disposing of Mrs. Kirby’s rights in the litigation. In discussing the issues which we anticipated would come up on a retrial of the case, we held that if appellant and her husband were tenants by the entirety, then her act in signing the unacknowledged mortgage with her husband, and delivering same to plaintiff, passed her interest as tenant by the' entirety. The pleadings, however, in the present case concede that appellant has only an inchoate, right of dower in the land described in said mortgage. We neither considered, nor passed upon, the question now before us, in the former litigation. We are satisfied with the conclusion reached in the former case on the record presented therein.

The Illinois cases cited by respondent’s counsel have no application to the cáse in hand, for the obvious reason that section 17 of the Illinois Married Woman’s Act of 1874 (Ill. R. S. 1874, pp. 275-6; 109 Ill. 656), in express terms, authorizes the husband and wife to convey the latter’s interest in his land by both joining in a deed therefor, although it may not be acknowledged by her; but the same section provides, that:

“In all cases where the interest of the husband in any tract or parcel of land has been divested, by process of law or otherwise, the wife may, by deed duly executed and acknowledged, release and convey to the purchaser,” all her interest in such land.

Mr. Justice Mulkey, in Bute v. Kneale, 109 Ill. l. c. 657, in discussing the effect of said last quoted portion of section 17 supra, said:

“But in such ease her deed must be duly acknowledged and properly certified, as required by the statute, otherwise it will be inoperative.”

This was one of the cases to which we were referred by respondent’s counsel since the oral argument of the case.

We find nothing in the cases cited by respondent which would warrant us to affirm judgment in this cause.

III. Having reached the conclusion that respondent is not entitled to maintain this action, we hereby reverse and remand the cause, with directions to the trial court to set aside its judgment in behalf of plaintiff against this appellant, and to dismiss this cause as to appellant, át the cost of plaintiff.

Brown, G., concurs.

PER CURIAM:

-The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.