Kimball v. Silvers

Philips, P. J.

I. The first matter for consideration is the action of the court in denying the defendants’ motion to remand the property to the defendants, and in permitting the plaintiff to file the proper affidavit. The statute (sect. 3844, Rev. Stat.) provides that if the plaintiff claim in his petition the possession of specific personal property, he may, at the time of filing his petition, or at any other time afterwards, before the rendition of judgment in the cause, file his affidavit, or the affidavit of some other person in his behalf, etc.

It may be conceded that, under the original affidavit, the clerk had no right to make the order of delivery, and that the sheriff had no authority to take the property and turn it over to plaintiff. The required affidavit was in the nature of a jurisdictional fact, or act, that must precede the order of delivery.

But the statute provides that this affidavit may be made at the time of filing the petition, “ or at any other time afterwards, before the rendition of judgment in the cause.”

So, regarding the first affidavit as no affidavit, the plaintiff, or any one in his behalf, had the right to make *526 the required affidavit at the time the second one was made. By section 3845, it was then the duty of the court to make the order of delivery. So had the court sustained the defendant’s motion upon the presentation of the proper affidavit it was bound to make the delivery order, under which the sheriff would have been required to retake the property and restore it to the plaintiff. Why then go through the idle ceremony of first sustaining the motion, and in the next instant order the sheriff, before he could get out of the court house, to retake it ? It is no answer to ' this fruitless form to say that

■ defendant could not give a forthcoming bond and retain the property under the first affidavit, because, had he •done so, it would have been a recognition of the validity of the affidavit. Conceding this to be correct, which we do not decide, what loss would he have sustained between the sustaining his motion, had it been sustained by the ■court, and the making of the second affidavit? The law requires no idle ceremonies. State ex rel. v. Koontz, 83 Mo. 333 . It looks to substance rather than to empty form.

II. As the plaintiff ’ s claim to the immediate possession of the piano is based on the chattel mortgage, the question of paramount importance to be determined is, ■ did the execution of the mortgage, by the wife alone, • entitle the plaintiff, upon breach of its conditions, or any -of them, to maintain the action of replevin ?

New questions in our practice are more vexatious .and embarrassing than the ascertainment of the real status of married women in respect of their separate property interests. It seems to be conceded in the .argument that this piano is the separate property of Mrs. Thorpe.

It has been recently decided by the supreme court of this state ,in Martin and Wife v. Colburn, that a, feme covert is disqualified to transfer her separate real .estate by deed without her husband joining her in the .act.

*527 While it is true that such transfers can only be evidenced by deed, duly acknowledged, as to married women, and the decision of the supreme court is to be applied with reference to that fact, yet it is to be observed that the learned judge places his conclusions largely on the policy of the law, which is designed to ■ “shield her against any indiscretions into which her inexperience might lead her, with respect to her property ; to protect her against the schemes of designing persons who might ■covet her estate, and, above all, to preserve harmony and happiness in the household, which might be seriously disturbed by the conveyance of her real estate by the wife without consulting” the'husband.

We recognize in this connection the distinguishing fact that in respect of personal property the title may be transferred without deed, by mere delivery ; and also the embarrassment of the position, should we hold, as requested by appellants, of ’conceding that a married woman may make an absolute sale of her separate personal property, and pass the title by delivery, while she may not make a valid mortgage of it at law, without her husband’s co-operation.

It occurs to me, however, that much of the confusion •and seeming inconsistency respecting this controversy may be attributed to the failure to keep in mind the distinction between executed and executory contracts, or considerations, and the difference, in point of remedy, where she seeks to enforce a right for the protection of her separate property interests, and where an action is brought asserting a right growing out of, or based on, an executory contract made with her.

It has been held, for instance, that under circumstances of strong equity she may enforce a specific performance of a contract made with her for the purchase or ■sale of land. Neff v. Redmon, 76 Mo. 195 ; Walker v. Owens, 79 Mo. 663 . And yet it has not been held, in this state, that an action for specific performance is maintainable against her on such contract. Likewise, it *528 has been held that, as to her separate personal property, she may maintain an action in replevin for its wrongful taking and detention. McCoy v. Hyatt, 80 Mo. 130 . The supreme court of this state recently held, in effect, in Dunifer v. Jecke (2 West. Rep. 452-3) that husband and wife might sue as partners on an account due the concern ; and that in respect of the wife’s separate personal property she might make contracts.

But the learned judge, who delivered the opinion, recognizing the embarrassment surrounding the question we have to determine, observed: “ How such contracts are to be enforced, as against her and her property, are not involved herein.”

The legal effect of the plaintiff’s status in this action is to enforce a right based on an executory consideration or contract with a married woman alone. He claims that her bond is broken, that she is in default and has not kept and performed her undertaking, whereby he is entitled, under the contract, to claim the possession of her personal property. This right he is seeking to enforce in an action at law.

The mortgage was given to secure the payment of her note made without the concurrence of her husband. This, at law, was void. Bauer v. Bauer, 40 Mo. 61 . No judgment at law could be rendered against her based on this note. It would be a void judgment. Higgins v. Peltzer, 49 Mo. 156 . But a court of equity would enforce the payment of the note by declaring it a charge upon her separate estate, if given under circumstances, indicated by the contract itself, that she intended her separate estate should be so bound. Kimm v. Weipple, 46 Mo. 532 .

The intention of Mrs. Thorpe to create a charge upon her separate estate, to the extent of the piano, is manifested in writing by the execution of the mortgage. But no other property than the piano could be taken in equity. Kimm v. Weipple, supra.

The proceeding to reach her separate property, by *529 subjecting it to the charge, is essentially equitable. It cannot be accomplished in an action at law. As said by Henry, C. J., in Martin and Wife v. Colburn, supra: “Her power to charge her separate estate is not based on the jus disponendi. In fact she does not charge it, but équity does it for her. The whole doctrine on the subject lies within the domain of equity.” In Kimm v. Weipple, supra, Wagner, J., quotes with approval the language of Lord Thurlow, in Holme v. Tenant (1 Bro.. C. C. 16): “Inasmuch as her creditors have not the means at law of compelling payment of her debts, a «court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property as the only means by which they can be satisfied.”

In Nash v. Norment ( 5 Mo. App. 545 ) it is said of such a chattel mortgage as this : “ Clearly such a mortgage is bad.” This, too, was said of a mortgage executed since the married woman’s act of 1875. In the subsequent case of Stale ex rel. v. Berberich ( 9 Mo. App. 128 ), Lewis, P. J., held, that since the said act of 1875, a married woman without joining her husband could execute an instrument constituting a trustee for her separate property.

But it is to be observed in all these cases, that the act of the feme covert was not sought to be enforced against her, but was for her benefit. The suit was in equity, and not, as here, at law seeking to enforce her contract, in effect, against her.

I am unable to perceive wherein the act of 1875 affects this question. It simply declares that, as to certain personal property, it shall be her separate property, and under her sole control. It does not purport to touch the matter as to how that property shall be disposed of; nor does it in any manner enlarge the remedies against her, or profess to give the courts of law jurisdiction over her contracts different from what they had before the *530 act. It leaves the matter of practice and the methods of procedure just as they stood. Ai iction in personóme an no more be maintained against ? . .íarried woman to-day than it could prior to 1875. And until the legislature shall, by enactment, change the rule of law in this respect I am unable to see how it is to be upheld, upon authority and principle, that an action at law can be maintained to enforce an executory contract made by a married woman as one sui juris.

The question, I admit, is not free from its embarrassment, but in the present state of the adjudications in this jurisdiction, and in view of the fact that the feme covert in this case did not deliver the property to the mortgagee, but consented and directed that the constable might take it on the writ of attachment, I reach the conclusion that the demurrer to the evidence should have been sustained. The other judges concurring, the judgment of the circuit court is reversed, and the cause is remanded, to be proceeded with conformably to this opinion.