Meads v. Hutchinson
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Macfarlane, J.
-Action of ejectment commenced August 1, 1888. Petition in the usual form and answer a general denial. The land plaintiffs seek to -recover is lot 11 and eight and one-half feet off the south side of lot 12, block 16, Peery Place, in Kansas City. They claim title as heirs-at-law of Sue B. McFarland. George *626 G-. Rounds, the common source of title, on the twenty-fifth of June, 1872, conveyed the land to Sue B. McFarland, then wife of Houston McFarland, by deed of general warranty. This deed created no separate estate in the grantee. On June 3, 1872, the said Sue B. McFarland alone executed and delivered to John E, McFarland a note for $450, and on June 28, 1872, she and her husband executed and delivered to the said John E. McFarland a deed of mortgage conveying to him said land. This deed recited that it was made “for and in consideration of the sum of $450, to us in hand paid by John E. McFarland,” and was conditioned that “if the said Sue B. McFarland, her executors and administrators shall pay the sum specified in said note and all the interest that maybe due thereon,” then the conveyance to be void. In default of payment power was given the mortgagee to sell and convey the property.
Sue B. McFarland died on March 8, 1877, leaving her husband, Houston McFarland, and her two children, then minors, Maggie, who married Arthur C. Meads, and Mary, who married Clinton Cockrill. This suit was commenced in the name of these children.
On June 13, 1878, after the death of Sue B. McFarland, John E. McFarland sold the land under the power of sale contained in said mortgage, complying with all the terms and conditions of the deed. The said Houston McFarland bought the same, to whom a deed of conveyance, in due form, was made. Houston McFarland conveyed to the grantors of defendants.
Houston McFarland died in 1888 and Maggie Meads has died since the institution of this suit, leaving her coplaintiff her sole'heir-at-law.
Upon the trial the court refused to admit in evidence the said mortgage, refused all declarations of *627 law asked by defendants giving effect to the mortgage and the sale thereunder, and upon the evidence found for the plaintiffs, and judgment was rendered accordingly, from which the defendants appealed.
It will be seen that the correctness of the judgment •of the circuit court depends upon the legal effect to be given to this mortgage and to the deed of the mortgagee to Houston McFarland.
I. Under our statute concerning the conveyance . ■of real estate (sec. 2396), a married woman, when all the conditions of the statute have been complied with, has as complete and unlimited power to pass the title to her real estate by deed as one under no disability whatever. She will be estopped by her covenants “so far as may be necessary effectually to convey from her and her heirs all right, title and interest expressed to be conveyed therein.” So it has been held by a number of ■decisions of this court, some of them quite recent, that a married woman, when conforming to the requirements of the statute, has the unquestioned power to make a valid mortgage upon her real estate which is not held to her separate use, though the debt or liability secured thereby is that of her husband. Wilcox v. Todd, 64 Mo. 388 ; Thornton v. Bank, 71 Mo. 221 ; Hagerman v. Sutton, 91 Mo. 519 ; Rines v. Mansfield, 96 Mo. 394 ; Ferguson v. Soden, ante, p. 208.
While it is conceded by plaintiffs that Mrs. McFarland had the power, under the statute, to convey her real estate by mortgage, it is insisted that the validity of a mortgage depends entirely upon the validity of the ■debt it was given to secure, and it appearing, upon the face of this mortgage, that it was intended for the security of a note of a married woman,"which was absolutely void, the deed for that reason was also void, and neither passed the title to the mortgagee nor gave bim power to sell and convey.
*628 We think it undoubtedly true as contended that a mortgage is merely collateral to the debt it is intended to secure, and if there is no debt there can be no valid mortgage, and when the debt is paid the mortgage is satisfied and cannot be enforced, yet we are not willing to concede that this mortgage shows upon its face that the debt it purports to secure is invalid. It is true the note made by Mrs. McFarland, which is copied into the deed, is void as, a contract and could not be enforced against her personally; but we think it very apparent from the whole instrument that she had received from the mortgagee the sum of money named in the note, and was indebted to him to that amount. To secure that debt she had the undoubted power to make the mortgage, and the fact that the indebtedness was evidenced by a promissory note should not defeat her honest purpose to secure it. 2 Bishop on Married Women, sec. 305; Tiedeman on Real Property, sec. 310, and cases cited in each; Brant v. Robertson, 16 Mo. 143 .
We can see no reason for doubting the validity of this deed. The statute expressly authorizes a married woman to. sell and convey her real property and this deed is executed according to the mode thereby prescribed, and should be a decisive answer to the objection urged against it. The power given a married woman to sell and convey her real estate implies the power to impose conditions and defeasances, and to authorize the grantee in a mortgage to sell and convey upon such terms as she may see fit to impose. These powers necessarily accompany the unlimited right of disposal.
It is agreed that the sale and conveyance of this real estate by the mortgagee was regular and in conformity to the powers and conditions granted ■ him under the mortgage. The sale then, undoubtedly *629 passed the legal title to the purchaser under whom, by regular mesne conveyances, defendants are in possession. A plaintiff in ejectment must recover on the strength of his own title, and the legal title to this property being in defendants there can be no recovery in this form of action.
II. It is insisted that the purchase by Houston McFarland, husband of Sue B. McFarland, at mortgagee’s sale, had the effect of satisfying and discharging the debt of his wife, and the debt being satisfied nothing passed by the deed. In answer to that we may say that whatever may have been the effect of the purchase by the husband the deed passed to him the legal title to the property, and so long as that is held by defendants there can be no recovery in ejectment.
At the time of this purchase under sale by the mortgagee, the [husband, as tenant by the curtesy, held a life-estate in this property subject to the mortgage, the heirs of the deceased wife holding the reversion. No such confidential relations existed between the tenant for life and remaindermen as prevented the former from purchasing at the mortgagee’s sale. The relation of husband and wife did not then exist, as in case of Hickman v. Link, 97 Mo. 482 . We think the rule adopted in the late case of Allen v. DeGroodt, 105 Mo. 442 , applies directly to this case. It was there held that if a life-tenant purchase an incumbrance on the property such purchase will be deemed to have been made for the benefit of himself and those in remainder, if the remaindermen see fit to pay their share, and that the same rule would apply to a tenant for life purchasing the commor property under mortgage or deed of trust, the title would be held by him subject to the right of the remaindermen to come in and obtain the benefit of the purchase by contributing their share of the purchase price. The title to the property here in *630 controversy remains in defendants, and plaintiffs under the equitable rule declared in the DeGroodt case, supra, are not entitled to avail themselves of it until they have-done what equity requires of them.
Under the evidence in this ejectment suit the judgment should have been for defendants. Judgment reversed.
All concur.
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