Lakenan v. McIlhaney , 17 Mo. App. 413 ( 1885 )

Opinion by

Hall, J.

In this case the 2d amended petition, on which the case was tried, avers substantially: That the plaintiffs ■ at the beginning of the suit were and' for a long time prior thereto had been partners in the real estate business, under the firm name of Lakenan & Barnes; that the defendants, Mcllhaneys, were husband and wife, and that [John M. McIlhaney was joined as a party to conform to law. That at the times therein mentioned, the female McIlhaney was the owner in fee simple of certain described real estate, being her sole and separate ■estate. That said female defendant on a certain day placed said real estate in plaintiff’s hands for sale, the plaintiffs to find a purchaser for said real estate, to prepare the deed for said defendant and her husband to .sign, to collect the purchase money, and if a sale should be made for $800, that plaintiffs should deduct the sum ■of $50 as their compensation from said purchase price; the female defendant intending thereby to charge her .separate estate with the payment of said sum of $50. That plaintiffs found a purchaser, named Green, for said real estate at and for the said sum of $800; that said female defendant accepted said purchaser, and in order to cheat and defraud plaintiffs of their part of the purchase money,- to wit, $50, after said sale was made, procured another than plaintiffs to draft the deed of conveyance.of said real estate, and collected the whole of the purchase money from said Green. That said defendant has wholly failed to pay plaintiffs the said sum of $50. That said defendant deposited in the Mexico-Savings Bank $225, a part of the said purchase money, which said sum was still in said bank. That said defendant had no other property which could be subjected to-the payment of plaintiff’s debt of $50, and that if said defendant should be permitted to draw from said bank the said sum of $225, the plaintiffs would be utterly remediless and without means to collect said debt, etc., etc.

The prayer of the petition was as follows:

“Wherefore plaintiffs pray that their lien on said $225 may be enforced and that they may have judgment for said sum of $50 and that said $225 may be subjected to the payment of such judgment, and plaintiffs further pray that defendant, L. M. Mcllhaney, her said husband, agent, or attorneys, or assigns, be restrained from in any way drawing said sum of $225 from said bank, and that said bank, its agents and attorneys- be restrained from paying out said last mentioned sum or any part thereof till plaintiffs may subject the same to the payment of their said debt, or until the matter aforesaid be adjusted according to the equitable powers of this court, and plaintiffs pray for all other and proper orders and relief.”

The defendants Mclihaneys- filed separate answers, which were substantially general denials, except that each answer admitted that said Mclihaneys were husband and wife.

The plaintiffs offered in evidence the following deed, which was duly acknowledged, which acknowledgment is omitted herefrom.

“Know all men by these presents, that Amanda Jane Pledge and H. L. Pledge,, of the county of Audrain, in the state of Missouri, have this day, for and in consideration of the sum of seven hundred dollars, to the said Amanda Jane Pledge in hand paid by Laura M. Mcllhaney, of the-county of Audrain, in the state of Missouri, granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Laura M. Mcllhaney, the following-described tracts or parcels of land, situate in the county of Audrain, state of Missouri, that is to say: N. E. fourth of S. W. quarter section 12, township 50, range 9, containing 40 acres, more or less. To have and to hold the-premises hereby conveyed, with all the rights, privileges., and appurtenances thereto belonging, or in anywise appertaining, unto the said Laura M. Mcllhaney, his [her] heirs and assigns, forever: I, the said Amanda J„ Pledge, hereby covenanting to and with the said Laura M. Mcllhaney, his [her] heirs and assigns, for himself, his heirs, executors and administrators, to warrant and defend the title to the premises hereby conveyed against the claim of every person whatsoever.

In witness whereof, we have hereunto subscribed our names and affixed our seals, this 9th day of November, 1876.

Amanda J. Pledge, [seal.]

H. L. Pledge, [seal.]”

The defendants objected to the introduction of the deed in evidence, for the reason that the deed did not show that said forty acres of land were the separate property of the defendant, L. M. Mcllhaney, which objection was by the court sustained.

A. C. Barnes, one of the plaintiffs, testified among other things: “On the day of--, 1881, John M. Mcllhaney, who is the husband of L. M. Mcllhaney, placed in our hands for sale the forty acres of land described, * * * and by an agreement with said John M. Mcllhaney we were to sell the land for $800.00 and have $50.00 out of the proceeds of the sale for our commission. * * * That contract was made in writing and signed only by John M. Mcllhaney. * * * That has been destroyed —it was burned. * * * At the time John M. Mcllhaney made the contract with us for the sale of the land we did not know that the title to the land was in his wife, L. M. Mcllhaney, but found it out before the sale to Green was made.”

This is absolutely all the evidence in the record bearing upon the contract made by plaintiffs for the sale of the said land, which contract the petition avers was made by plaintiffs with Mrs. Mcllhaney.

The defendants introduced no evidence. The court rendered judgment in favor of the Mexico Savings Bank and L. M. Mcllhaney, and in favor of plaintiffs against John M. Mcllhaney for the amount sued for.

The plaintiffs bring the case here by appeal.

In this court the plaintiffs complain of the action of the circuit court in refusing to permit them to introduce in evidence the deed above set out, and they argue at some length as to what the effect of the deed is, and as to what kind of an estate it creates in Mrs. Mcllhaney in the land therein described. It is not necessary for us to consider these matters; neither is it necessary for us to consider how under the pleading in this case the circuit court could render a judgment against John M. Mcllhaney, the husband.

It is enough for us to say that under the evidence in this case the circuit court could not have rendered a judgment against Mrs. Mcllhaney, and that the judgment in favor of her and the Mexico Savings Bank is right.

■ There is not a particle of evidence in the record that John M. Mcllhaney was acting, or was even pretending to act for his wife in the making of the contract in proof. But, on the contrary, the positive statement of the one plaintiff who testified is in the record to the effect that the plaintiffs made the contract in writing with John M. Mcllhaney himself, and that John alone signed the contract, and that the plaintiffs at the time did not know that Mrs. Mcllhaney owned the land. How the plaintiffs can claim that the contract was made with Mrs. McHhaney we do not understand. The agency of the husband cannot be presumed but must be shown and clearly established by evidence. — Rogers v. The Bank of Pike County, 69 Mo. 563. In this case there is not only no evidence of such agency, but all the evidence tends to show that there was no agency. As to the claim of a ratification by Mrs. Mdlhaney, made by plaintiffs, it is sufficient to say that there is no evidence whatever in support of their claim.

The judgment of the circuit court is affirmed.

All concur.