Mathias v. Arnold

191 Mo. App. 352

• Court: Missouri Court of Appeals
• Decided: July 15, 1915
• Status: Published

Opinions

ALLEN, J.

This is a suit in equity seeking to restrain the threatened sale of real property belonging to plaintiff, a married woman, under an execution issued upon a judgment against-her husband, and to release plaintiff’s property from the levy of such execution. The defendants are the judgment creditor of the husband, for the attempted collection of whose judgment debt the execution was issued and levied, and the sheriff of the city of St. Louis who made the levy and who was proceeding to sell the property in question. The court below sustained a demurrer interposed by defendants to plaintiff’s amended petition. Plaintiff declined to plead further, and final judgment having been entered upon the demurrer, plaintiff appealed. ' The court put into effect a temporary restraining order, holding the matter in statu quo pending the appeal.

The amended petition avers that plaintiff is the owner and in possession of certain tracts of land in the city of St. Louis, describing them, improved by four separate residence buildings.; that on May 10, 1910, the defndant Arnold obtained a judgment in the' circuit court of the city of St. Louis against one Colonel A. Mathias, in the sum of $1000' and interest, which judgment remains unpaid and unsatisfied; that on the -day of November, 1912, defendant Arnold caused to be issued out of the office of the clerk of the circuit court of the said city of St. Louis, an execution upon said judgment directed to the defendant Louis Nolte, then the sheriff of said city, and directed and caused the latter to levy upon and seize, as the real estate and property of Col. A. Mathias, the real estate described, which, at the direction of defendant Arnold, was duly advertised for sale under such execution, and that the defendant sheriff was, at the time of the institution of this suit, proceeding to consummate such sale.

It is averred that the execution debtor, Col. A. Mathias, is the husband of this plaintiff; “that he never had, nor has he now,” any interest in said real estate of plaintiff, subject to execution, and has only such interest therein “ as he derives from being the husband of this plaintiff.”

The petition then alleges that, if the threatened sale of plaintiff’s real estate be so made, a cloud will be put on plaintiff’s title thereto; “that because of the- relationship of plaintiff as the wife of said Col. A. Mathias, and because he has assisted as her agent in the buying and selling of real estate in the said city of St. Louis, a widespread suspicion exists amongst the real estate • dealer and others in the said city” that plaintiff’s husband owns some interest in such real estate, and if said sale were consummated, plaintiff, before she could lease, mortgage or dispose of such real estate, would be compelled to institute a suit or suits to clear the title to the various parcels thereof.

It is further alleged that there are persons, associations and corporations organized in the city of St Louis who practically control all of the real estate transactions therein; and that they have promulgated and established rules which will deprive plaintiff of the power to mortgage or dispose of her real estate, if sold under said execution, and that such sale would, on this account, destroy the selling, trading and loan value of said real estate; that abstracts of title are not used in the city of St. Louis, but that all questions of title are shown by certificates of title issued by the only persons and companies engaged in the abstracting business in said city, and that none of said abstractors will issue a clear certificate of title to property belonging to a wife where a sheriff’s deed appears of record pursuant to a sale under an execution against her husband, by reason whereof it is impossible to borrow money upon or dispose of such property. And it is averred that because of the levy of said execution plaintiff has been and will be unable to renew an existing loan secured by mortgage upon some of the property, which fell due after the levy, and that plaintiff is threatened with the loss of such property by foreclosure.

It is further alleged that the declared purpose and intent of defendant Arnold is to harass and annoy plaintiff by so levying upon her property, with the hope that thereby she may be forced into paying said judgment against her husband; that defendant Arnold is wholly insolvent, and that plaintiff is without adequate remedy at law in the premises.

- Such, in substance, are the allegations of the petition, which is quite lengthy and for that reason is not fully set out. .

The demurrer was evidently sustained upon the theory that no such cloud would be cast upon the title to plaintiff’s property by the threatened sale' thereof, and the execution and recording of a sheriff’s deed pursuant thereto, as to call for equitable interposition. And in support of the ruling below respondents invoke the doctrine that equity will not, as a rule, interfere to restrain the sale of land where the plaintiff is in possession and holds alegal record title which, unaided by extrinsic evidence, is superior to any title that can be acquired by a purchaser at the sale in question, and lias a complete and adequate remedy at law against any claim that may be asserted, by such purchaser (see Russell v. Lumber Co., 112 Mo. 41, 20 S. W. 26; Wilcox v. Walker, 94 Mo. 89, 7 S. W. 115; Kuhn v. McNeil, 47 Mo. 389; Herman v. Westheimer, 110 Mo. App. 191, 85 S. W. 101); that in order that a cloud may be cast upon the title of a record owner in possession, so as to call for equitable relief, the title, lien or claim which is asserted to cast a cloud upon the owner’s title must be one apparently valid upon the face of the record, requiring, resort to extrinsic evidence to establish its invalidity (see Turner v. Hunter, 225 Mo. 71, 123 S. W. 1097; Hannibal & St. J. R. Co. v. Nortoni, 154 Mo. 142, 55 S. W. 220; Clark v. Insurance Co., 52 Mo. 273; Dunklin County v. Clark, 51 Mo. 60).

Prior to the amendment, in 1899, of what is now section 2534, Revised Statutes 1909, it was held that one holding the record title to real property and in possession thereof could not maintain a bill in equity to restrain the sale of such land under an execution against a stranger to the title who had no real or apparent interest therein and hence nothing would pass by such sale. [See Kuhn v. McNeil, supra; Drake v. Jones, 27 Mo. 428.]

This statute as it now stands is as follows:

< < rpbg remedy by writ of injunction or prohibition shall exist in all cases where a cloud would be put on the title of reed estate being sold under cm execution against a person, partnership or corporation having no interest in such real estate subject to execution at the time of the.sale, or an irreparable injury to real or personal property is threatened, and to prevent the doing of any legal wrong- whatever whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages.”

The words in italics were added by the amendment of 18991.

This statute is invoked by appellant as here authorizing the granting of the injunctive relief sought, evidently upon the theory that the amendment was intended to afford a remedy, not theretofore existing, where the execution debtor has no interest, real or apparent, in land levied upon. Such, however, is not the view taken by the Kansas City Court of Appeals, which has held that under the statute, as amended, the owner of the legal record title, in possession, cannot maintain a suit in equity to restrain a sale thereof under an execution against a stranger to the title, who has neither a real nor an apparent interest therein; that the statute authorizes injunctive relief only where a cloud would be put upon the owner’s title by such sale, and that a cloud can be so cast upon the title only when the execution debtor has some apparent interest in the land, which will make it necessary for the owner to offer evidence extrinsic to the record to support his title and defeat a recovery by the purchase at the execution sale. [See Payne v. Savings Assn., 126 Mo. App. l. c. 598, 105 S. W. 15; Carrell v. Meek, 155 Mo. App. 337, 137 S. W. 19; Taylor v. Swearingen et al., 161 Mo. App. 467, 144 S. W. 160.] But, in the case before us, we do not deem it necessary to express any opinion as to the effect of the amendment in question. In our judgment the right asserted by this plaintiff .to restrain the levy of execution upon her property, and its sale thereunder, in attempted satisfaction of the judgment debt of her husband, may be upheld for reasons which do not enter into a case of this general character where the owner and the execution, debtor are strangers.

In Payne v. Savings Assn., supra, the execution debtor and the owner were not husband and wife, and it appeared that plaintiff would have been compelled to defend his title by evidence extrinsic to the record, and was held to be entitled to restrain the sale under the execution.

In Carrell v. Meek, supra, the execution debtor and the owner were husband and wife. The legal title to the property had at one time been in the husband, and for this reason it was held that the plaintiff was entitled to injunctive relief to prevent the casting of a cloud upon her title, under the statute, supra, citing Neeley v. Bank, 114 Mo. App. 467, 89 S. W. 907; Payne v. Savings Assn., supra; 6 Am. & Eng. Ency. Law (2 Ed.), p. 163.

In Taylor v. Swearingen, supra, which is here greatly relied upon by respondents, it is said that the execution debtor and the plaintiff were in fact husband and wife, but the learned author of the opinion states, at the outset, that the record nowhere showed this. The case was therefore disposed of as though such parties were strangers; and the plaintiff was denied the relief sought, upon the theory that no such cloud would be put upon her title as to call for equitable intervention.

In the instant case we think that plaintiff’s right to injunctive relief is clear, regardless of the precise •nature of the blot which may be put upon her title if defendants be not restrained as prayed; this because of the relation of husband and wife existing as aforesaid and the power and duty of a court of equity to protect the wife’s separate property from process to enforce the payment of claims of the husband’s creditors. It was an early doctrine of equity that the estate vdiicli a femme covert was capable of taking to her own separate and exclusive use would be protected against the marital rights and claims of" the husband and of his creditors as well. [See Holthaus et al. v. Hornbostle, 60 Mo. l. c. 442; 2 Story Eq., 1380.] And in Pawley et al. v. Vogel, 42 Mo. l. c. 303, it was said; “If the trust could he maintained in equity in favor of the wife against her husband’s creditors, the proper remedy would have been a proceeding in equity on her behalf to establish the settlement, and to obtain a perpetual injunction to restrain a sale of the property under a judgment at law ag’ainst him.” [See, also, Neeley v. Bank, supra, l. c. 470, 471.]

It would appear that the power of our courts of equity, theretofore possessed, to protect the separate estate of the wife against the marital rights of the husband and the claims of his creditors, is not restricted by the enactment of the Married Women’s Acts, the design thereof being to enlarge and not to restrain the remedies of femmes covert.

It is said that “an essential attribute of the wife’s separate estate is that it is not liable for her husband’s debts, and she is entitled in equity to relief by injunction against the levy of execution thereon by his creditors.” [See 21 Cyc., p. 1439.]

Our statute (section 8309,.Revised Statutes 1909) provides: “All real estate and any personal property, including rights of action belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor or as grow out of any violation of her personal lights shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband.” (Italics ours.)

A proviso to this section makes the wife’s separate personalty liable for a debt of the husband created for necessaries for the wife or family, but provides that in any such case before execution may be levied upon the wife’s separate property she must have been made a party to the action ‘ ‘ and all questions involved shall have been therein determined and shall be recited in the judgment and the execution thereon.”

Section 8308, Revised Statutes 1909, provides: “That 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.” (Italics ours.)

It thus appears that our statutory law expressly exempts the wife’s separate property from levy of execution for the sole debts of the husband, and forbids its seizure under any process of law for the husband’s debts. It seems clear to us, therefore, that where a wrongful levy, in violation of such express statutory provisions, is made upon a wife’s separate property, the power of a court of equity to interfere is beyond question. Section 2534, supra, among other things authorizes injunctive relief to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages. Thus the statute, aside from the inherent power of a court of equity to prevent the perpetration of legal wrongs for which the law affords no adequate remedy, is broad enough to authorize the granting of the relief here sought. Sections 8308 and 8309, supra, clearly, we think, prohibit the doing of the very thing here sought to be restrained, and from the allegations of plaintiff’s bill it fully appears that she is without remedy at law in the premises. Consequently it was within the power of the court below, and was its duty, in our judgment, to entertain plaintiff’s bill praying for relief.

This question is fully discussed in a well-reasoned opinion in Hunter’s Appeal, 40 Pa. St. 194. The action was by bill in equity to restrain the sale of certain real estate of the complainant on execution against her husband, it being averred, as here, that the exclusive ownership of the property was in the wife. The court said :

“Thus the exclusive ownership and title of the wife, the complainant, stood admitted, and the bill must have been dismissed for want of jurisdiction or the inapplicability of the remedy.

“The question now is, did the- chancery power of the court extend far enough to afford the relief prayed? Nothing but want of jurisdiction in the court or irrelevancy of the proposed remedy, could have authorized the summary dismissal of the bill. Did they exist? On the pleadings the only question presented was whether, since the Acts of April 11,1848, and April 12,1850, a levy and sale of a wife’s property on execution against her husband, was or was not contrary to law? If it was, and there was no adequate remedy at law for the act, then the court had jurisdiction of the subject-matter of the complaint; and it not being denied that it also had of the parties, the relief prayed for ought to have been granted.”

The opinion then concedes that it had been the constant practice in the Commonwealth of Pennsylvania to permit a judgment creditor to levy execution upon any property in which he may believe his debtor to have an interest; that in such cases the question of title was usually left to the test of an ejectment; and, as a rule, courts of equity were powerless to interfere,-despite the hardship often entailed upon owners of real property.

The Act of 1848, referred to, provided that the property of a married woman should continue to be her separate property after marriage as fully as before, and should “not be subject to levy and execution for the debts and liabilities” of the husband. And the Act of 1850 provided tbat “the real estate of any married woman in this Commonwealth., shall not he subject to execution for any debt against ber husband, on account of any interest he may have, or may have had therein as tenant by the curtesy, hut the same shall he exempt from levy and sale for such debt during the life of the wife.” (Words in italics appear thus in the opinion.) Referring to the latter act, and the equitable jurisdiction of the courts of that State, the opinion thus proceeds:

“This act plainly forbids .execution, because it expressly exempts the property from levy and sale. The question then recurs, are a levy and proceedings to sell a wife’s property for the debt of the husband in the lifetime of the wife, under the exemption and prohibition of the acts cited, contrary to' law or not? It is not easy to demonstrate the truth of a proposition that is self-evident, and it would be .little less troublesome to prove what is so palpable on the face of these statutes. The whole object of the latter one is to deny legality to a levy and sale of the property therein described. Whatever, therefore, cannot be done without a violation of law, must be contrary to law, and being so, may be restrained if there be no adequate remedy at law.

‘ ‘ The fifth clause of the third section of the Act of June 16, 1836, now in force throughout the Commonwealth,. gives the several courts jurisdiction in equity ‘for the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights -of individuals.’ Acts which may be restrained, must be both contrary to law and prejudicial to the interests of the community or the rights of individuals.

“We have already shown the act of a levy on a married woman’s property, with proceedings necessary to consummate a sale, to be contrary to law. Is not the prohibition itself sufficient evidence that the act, in the estimation of the Legislature, would be prejudicial to the right protected by the prohibition? This cannot be doubted. It would be folly to prohibit harmless acts. It is, therefore, always to be presumed, that whatever is prohibited, is either wrong in itself or against the policy of the government. The foundation for the prohibition in both cases, is the prejudicial consequences of the acts prohibited. It is not, therefore, necessary, when there is a statutory prohibition of an act, to trace out prejudicial consequences to bring it within the defined jurisdiction in equity of our courts. If the law be transcended or disobeyed, the act may be restrained.

“In the case before us, the property was confessedly the wife’s exclusively. It was exempt from levy and sale for the debts of the husband by statute. Subjecting it to such process for such purposes was also prohibited by the same statute; notwithstanding this, the appellees did levy on it, and were proceeding to sell it when the injunction was applied for. This law and these facts clearly brought the case within the chancery jurisdiction of the court below, and instead of dismissing the bill, the court should have granted a preliminary injunction to restrain the appellees from proceeding to levy and sell the property. ’ ’

Our statutes in question certainly are as explicit and far reaching as those discussed in the above opinion. Section 8308, supra, expressly exempts the interest of the husband in the wife’s right, in her separate real estate, from attachment or levy of execution for the sole debts of her husband. And section 83091, supra, in terms forbids the taking of the wife’s separate property, real or personal, by any process of law whatsoever for the debts of the husband, with the exception above noted. To permit the wife’s property to be levied upon,, as here, is clearly in contravention of law, and constitutes the doing of a legal wrong for which it appears no adequate remedy at law is afforded the plaintiff. The reasoning of the case from which we have quoted at length appears to he altogether sound ; and the doctrine that equity will interfere in eases of this character is not without other authority to support it. [See Miller, etc. v. Johnson et al., 27 Md. 6; Bridges and Woods v. McKenna, 14 Md. 258; Love v. Graham et al., 25 Ala. 187; Walker’s Appeal, 112 Pa. St. 579.]

We perceive no sound reason why our courts of equity should not, in the present state of our law, afford relief to a married woman to protect her property against the claims of her husband’s .creditors. As said in Hunter’s Appeal, supra, we think it unnecessary to look to see whether prejudicial consequences will result from the doing of the acts sought to be restrained, since they are prohibited by law and presumptively harmful. Plaintiff’s petition alleges many things tending to show that loss and damage to her will ensue unless defendants are restrained as the petition prays. Respondents assert that the amended petition contains much immaterial matter, and abounds in conclusions and arguments of the pleader and recitals of evidence relied upon. It is unnecessary for us to consider in detail the allegations of the amended petition. It fully suffices, in our opinion, to state, a cause of action for the relief sought. Undoubtedly 'where the wife’s property is levied upon for the husband’s judgment debt results follow, owing to the relationship of the parties, which would not ensue were they strangers. In the particular case the prejudicial effects of the levy and threatened sale appear- from allegations of the petition which are more than mere conclusions or surmises of the pleader. But we regard it unnecessary to plead the injurious consequences with particularity. Surely one ought not to be permitted to harass and embarrass a wife by a levy upon her sole and separate real property, and a threatened sale thereof, for a debt of her husband, in the face of the statutory prohibition aforesaid, designed to protect the property rights of married women, upon the theory that the wife is not thereby injured. Certainly doubt would be cast upon her title to the land, as her sole and separate property, by a sale under such execution; for a sheriff’s deed filed of record would carry.with it the imputation that the husband had in fact been the real owner, the wife’s title being merely colorable, as is frequently the case. And the wife, though the true owner, as of her sole and separate property, would be compelled to endure the consequences until such time as the purchaser saw fit to take further steps, unless in some manner granted relief. We think that it would lie lame and halting equity indeed that could not reach such a situation with a remedy. [Pocoke v. Peterson, 256 Mo. l. c. 519, 165 S. W. 1017.]

The law affords ample means for reaching property fraudulently conveyed to the wife. No such question is here involved, for the demurrer admits the separate and exclusive ownership of the plaintiff.

We therefore hold that it was error to sustain the demurrer to the amended petition. The judgment of the circuit court will accordingly be reversed, and the cause remanded, with directions to reinstate the demurrer, overrule it, and that such further proceedings be had in the case as are consistent with the views expressed above. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.