Ellenmann v. Thompson

Napton, J., delivered the opinion of the Court. This was an action of ejectment brought by Thomson against Ellenmann and others, to recover possession of a lot of ground in St. Louis. The plaintiff obtained a judgment. The facts were agreed upon at the trial and submitted to the court. They were as follows: On the 30th May, 1842, the legal title to the premises, was in Emma Boschenstein, then and still the wife of John Boschenstein. On the 14th July, 1842, a judgment was recovered against John Boschenstein by F. W. & J. Thompson, for $215 47. On the 15th July, 1842, a writ of fi. fa. was issued on said judgment and returned nulla hona. On the seventeenth March, 1845, a second writ issued, which, on 7th of April, 1845, was levied on the premises in controversy, and on the 28th April, 1845, the land levied -.on was sold by the sheriff to the plaintiff. The sheriff made a deed according to law, conveying all the interest of said John Boschenstein to the plaintiff. On the 80th of May, 1842, a deed was made by Emma Boschenstein, by her attorney Ferdinand Boschenstein, conveying this land in trust to Joseph LeDuc, for certain purposes therein mentioned. This deed purports to be made and entered into “between Emma Boschenstein, wife of John Boschenstein, by and through her attorney in fact, Ferdinand Boschenstein, and by and with the consent of the said John Boschenstein husband of said Emma,” and certain other parties named therein of the second and third part. The parties of the first part by these presents “grant, sell, alien, enfeoff, convey and confirm” to the party of the second part, an undivided half of a certain lot of ground in St. Louis, describing it, it being the premises sued for-In subsequent clauses of the deed, the party of the first part is spoken of, and in other clauses, the words used are, parties of the first part.— This deed was signed and sealed by Emma Boschenstein, by her attorney in fact Ferdinand Boschenstein, and John Boschenstein and M. Tesson. The justice of the peace before whom the deed was acknowledged, certifies that Ferdinand Boschenstein, the attorney in fact of Emma Boschenstein and John Boschenstein, who were both personally known to him, [590] &c., severally acknowledged the deed, &c. This deed was admitted to be bona fide, and that before the sale by the sheriff, as aforesaid, the trusé of the said deed was executed by a sale of said land and a conveyance to Joseph LeDuc; that the proceedings of said trustee were regular and formal, and that the defendants hold the premises under LeDuc. The power of attorney, under which Ferdinand Boschenstein purported to act, was acknowledged by Emma Boschenstein before a justice of the peace. The Circuit Court being of opinion, that this deed did not pass the interest of John Boschenstein, in the land conveyed, gave judgment for the-plaintiff, and..from this judgment the defendants have appealed. We think, with the Circuit Court, that this conveyance is insufficient to pass the life estate of John Boschenstein. It is quite manifest, that the deed has been drawn under an entire misapprehension of our laws regulating conveyances. It does not purport to be a conveyance of. any estate or interest of the husband, but seems to have been designed to pass the estate of the wife, and the conveyancer appears to have thought the husband’s assent necessary. His name is therefore mentioned in the deed, not as a party conveying, but as assenting to the conveyance of his wife. It is true that in a subsequent clause of the deed, the words “parties of the first part,” are used, which might embrace the husband as well as the wife; but then, in other clauses of the instrument, the “party of the first part” is spoken of, in the singular number, and it is difficult, under these circumstances, to draw any inference as to intention. We do not feel authorized by any thing in the language of the deed, to infer that the husband either knew that he had any interest in this land, or designed to convey it, if he was aware of his rights. The debt-, to secure which the deed was given, was a debt of the wife, and the title to the land was in the wife. An attempt to convey this land is made by the wife, through a power of attorney, (which is not on the record,) without joining with her husband and without any privy examination, and her husband’s name is signed to the deed, and when mentioned in the body of the instrument, he is spoken of, not as a party conveying, but as assenting to the conveyance of his wife. The bare statement of such a deed, must be sufficient to show, that it has been drawn by some one unacquainted with our forms of conveyancing, and not apprised of the requisites in a deed to pass the estate of a fieme covert. Judgment affirmed.