Powell v. Scott , 43 Mo. App. 206 ( 1891 )

Gill, J.

This is a suit in equity brought by plaintiff Rowell against the executor of his deceased wife, whereby it is sought to charge funds in the custody of said executor arising out of the sale of certain real estate owned by said wife at her death. On a trial had in the circuit court, there was a finding and judgment for defendant, and plaintiff brings the cause here by writ of error. The controversy arose from the following state of facts, which we shall state in' the most favorable aspect for the plaintiff. In the year 1882, the said Thetis A. Powell, wife of the plaintiff, had in her possession and under her control, a large sum of money, most of which, to-wit, about the sum of $7,500, was a gift from the husband. With a portion of this money, Mrs. Powell purchased certain real estate at Kansas City, and the conveyance to her, of date June 14, 1882, was an ordinary warranty deed, using no words whatever to ■constitute a separate estate, nor any words indicating ■an intention to exclude the marital rights of the husband. The title to this property so remained in Mrs. ■ Powell till her death in the year 1886. On January 23, 1885, and while Mrs. Powell so owned this real estate), one E. M. Wells borrowed $600 from Robert Clore, and a note was given therefor signed by said Wells, Thetis A. Powell and A. H. Powell as security.

Whether Mrs. Powell signed as Security, or as •coprincipal, does not clearly appear. Wells failed to meet his obligation, and in 1887 plaintiff paid to the holder the sum due, with interest, and took an assignment of the note to himself. Defendant Scott, as executor under the will of Mrs. Powell, sold the real estate thus conveyed to her, and realized the sum of $13,200, and this suit is to enforce payment of the $600 note and interest so signed by Mrs. Powell, out of such proceeds.

I. Assuming now that plaintiff has the same rights, by virtue of purchase and assignment of the note as Clore, the payee, would have if prosecuting this action, and assuming, too, that the fund arising from the sale of the real estate by the executor, and now in his hands, is subject to the same charge as the real estate would be if yet unsold, we have here the claim asserted, that the real estate of a married woman, acquired by purchase with money, the gift of her husband, and conveyed to her by an ordinary deed, with nothing on its face to indicate that the grantee was to have and to hold a separate estate therein, and with no wilting, con-tern poraneous, prior or subsequent, to qualify such deed, is chargeable as equitable separate estate with payment of a note signed by her while holding such real estate.

After a careful review of the cases, we feel warranted in saying, that under’ the decisions of the appellate courts of this state such a position, as contended for by plaintiff’s counsel, cannot be maintained. This exact question was passed on by this court in Nicholson v. Flynn, 24 Mo. App. 571. We have reconsidered the points there determined, and again express-our satisfaction with the position there taken. We 'content ourselves now by a simple reference to the opinion in that case, and order an affirmance of the judgment herein.

All concur.-