Whiteley v. Stewart

Sherwood, Judge, delivered the opinion of the court. Allen Stewart and Elizabeth Stewart, defendants, ^re husband and wife. In March, 1872, in order to secure the payment of certain of his notes, made payable to plaintiff, he executed a certain sealed instrument, in the form of an indenture, whereby he purported to convey certain land held by the wife in her own right, being derived from the estate of her father. Although the wife is mentioned in the commencement of the deed, and in connection with her husband, as “ of the first part,” yet in the body of the deed the name of the husband alonéis mentioned as grantor; nor does the name of the wife appear anywhere in the deed otherwise than as above stated, but is signed at the bottom thereof, and the deed is duly acknowledged by both husband and wife, and placed on record on the day succeeding its execution. Others of the defendants are those who purchased the land of the wife under a power of sale, contained -in a deed of trust, executed by husband and wife in a formal manner. The last mentioned conveyance is of a date about a month later than the former deed. The plaintiff sought to foreclose the mortgage, claiming in his petition that, though in consequence of the name of the wife being omitted from the granting clause, the instrument, as to her, was at law [363] “ futile and invalid,” yet that it was “ nevertheless inequity, a valid mortgage upon said land.” The-court below took a different view and dismissed the petition, and this is assigned as error. The ruling complained of was correct, and the authorities cited in opposition to that ruling will not be found to militate against it. In all those cases where we have held that an equitable mortgage was created, whether the instrument in question was lacking in the formality of a seal, or in filling the blank with the name of the trustee, the parties were competent to contract, and, therefore, it was held that equity would treat the imperfect mortgage as a charge on the estate mentioned therein, which would be deemed an equitable mortgage, and enforced accordingly. But a feme, covert is not competent in respect to her land, so as to create an equitable charge thereon, save when possessed of a separate estate therein. (Shroyer vs. Nickell, 55 Mo. 264.) Here it is conceded that Mrs. Stewart had no separate estate in the land mentioned in the mortgage deed, and that deed shows on its face that she never granted the land, but that her husband was the sole grantor. The principles, therefore, which find enunciation in Shroyer vs. Nickell, supra, are decisive of this case ; and the result reached is not in the least affected by the fact that defendants are purchasers under a deed of trust placed on record after the one already referred to, since the registry of the last named instrument only showed that the husband, and not the wife, had conveyed the land to secure the payment of certain notes. It follows that the judgment should be affirmed. The other judges concur.