Furth v. March

BLAND, P. J. It may be conceded that, independent of the statute (section 4340, Revised Statutes 1899) giving to a married woman the wages of her separate labor as her separate means, her earnings resulting from, her labor in and about her husband’s household are his property and subject to the claims of his creditors ; and it may also be conceded that, in a legal sense, Charles March was the head of his family, but when, as in this ease, the wife purchases a home with her own means and on her own account and, with the consent of her husband, keeps boarders therein as a means of earning* money for herself and not for her husband, her earnings are her property and are not subject to her husband’s debts. Coughlin v. Ryan, 43 Mo. 99; Kidwell v. Kirkpatrick, 70 Mo. 214; Bartlett v. Umfried, 94 Mo. 530; Gruner v. Scholz, 154 Mo. l. c. 425. There is no law in this State to compel a husband to labor to-pay his debts. Seay v. Hesse, 123 Mo. 450; State ex rel.v. Jones, 83 Mo. App. 151. A fortiori there is no law in this State to compel a wife to labor for the benefit of her husband’s creditors. In G-runer v. Scholz, supra, at page 450, it is said: “The courts will closely scrutinize all transactions between husband and wife to discover any fraudulent scheme to defraud his creditors, but they will not go so far as to prevent the wife from honestly securing a home for herself and her family when he has failed in business.” And it was further held that, “The presumption that property obtained by the wife during-coverture was purchased with his money, may be rebutted, and if the transaction consists as well with honesty as with fraud, it will be presumed honest. ’ ’ The evidence clearly shows that Mrs. March and her children were making an honest and heroic effort to provide the family with a home; that her sons contributed their earnings to her for this purpose and that the home was mostly, if not entirely, paid for by the joint earnings of herself and children; and we are una [337] ble to see upon what principles of justice, or rules of equity, the creditors of her husband have any claim upon the proceeds of their earnings for the payment of March’s debts. But it is contended that a portion of his salary went to extinguish the mortgage. We have searched the record in vain to find where a dollar of his salary for any month ,at any time was so used. It is true, it is possible to draw an inference that at sometime, no one can tell when, a part of his salary for some month, no one can tell how much or for what month, might have gone to help make up some installment that was paid on the deed of trust. The burden was on the plaintiffs to prove these payments were made by March and the amount of the payments. They utterly failed to make any such proof. But even if we were led to infer that a considerable portion of the payments were made from March’s salary, the evidence is that he was paid a salary monthly and that he is the head of a family; that he was possessed of no property and had no income other than his salary, which for no month exceeded the sunnof $300. This amount was exempt, under section 3162, Revised Statutes 1899, and his creditors would not have been defrauded if he had turned over every dollar of it to his wife to be used by her at her pleasure. In Sternberg v. Levy, 159 Mo. l. c. 626, the Supreme Court, through Mabshali., J., said: “But if a man is entitled to his salary and certain exemptions as the head of a family which his creditors can not touch, and if he chooses to spend a part of his salary in premiums for life insurance for the benefit of his family after he is gone, his creditors are not thereby defrauded, for he has withdrawn no part of his property which his creditors could touch.” But it is contended by the plaintiffs that to entitle the defendants to claim the exemption, they should have made the claim in their answer. In Sternberg v. [338] Levy, supra, Sternberg, the interpleader, pleaded specially that the insured had made certain earnings over and above what was necessary to support his family and had invested the surplus in life insurance for their benefit; the interplea showed that his salary did not exceed $300 per month. The Supreme Court struct out this part of the interplea on the ground that Levy’s monthly salary was exempt. We know of no principle of equity pleading that excuses the plaintiff from pleading and proving all the facts essential to the relief sought. It was essential that plaintiffs prove as they had, in substance, alleged that March’s money or some portion of it that was subject to the payment of their debt, had been applied to the payment of the deed of trust. Proof that money exempt from execution was so applied, did not meet this allegation. Judson v. Walker, 155 Mo. 166; Stern-berg v. Levy, supra. There is no evidence in this record proving or tending to prove the fraud alleged, or to show that plaintiffs are entitled to any recourse whatever on the property of Mrs. March to pay her husbands debts. The judgment is reversed. Beyburn and Goode, JJ.,, concur.