CONNEOTICUT MUT. LIFE' INS:
, But if the territory is, as claimed by the defendant, so broken up, jumbled, and mixed, the several parts together; that there is nothinf( cOlitinuous, of course there can be no lode extending from one claim to the other. ' '
CONNECTICUT MUT. LIFE INs. Co. v; .JoNES.
(OWcuit (Jourt, E. D. Missouri. 1.
The wife IS not a proper party in an actIon of ejectment for property in her husband's possession in which she ,holds no separate estate in her own name.
, The holder of a note waives no rights" under. a deed of trust it, by ;,obtaining judgment thereon against the makel',.apd having a general eJiiecution issued.
Ejectment. Motion for New Trial. Overall cf: Judson, for plaintiff. Thomas S. Espy; fordefendlmt. MCCRARY, J. On the day of November, 1867; fendant borrowed from plaintiff $6,000, for 4e, execnted his promissory note, to secure which he and his wife joined hfthe cution of a deed of trust, by which they conveyed the real estate in question (a lot in the city of St. Louis) to one Albert Todd, as trustee. On the nineteenth of April, 1879, plaintiff recovered in this court a judgment at law upon said promissory note for $6,226, upon which execution was issued, and a small sum collected by levy upon arid sale of personal property was duly credited upon the judgment. The property covered by the trust is the homestead of the defendant. The deed. of trust contained a provision in the usual 'form. authorizing the thistee, upon default iri' payment of the to proceed to sellthe property, aftar notice, to the,highest biMer'for cash. The jUdgment rendered upon the note being unsatisfied, (except as to the small sum -made upongeheral e-s:etmtiotl,) the plaintiff pr6dured
the trustee to sell under the deed of trust. After due notice the sale took place, on the first day of July, 1879, and the plaintiff was the purchaser, for the sum of $6,000. A deed from the trustee to the plaintiff was duly executed, and to obtain possession under this purchase the present suit was brought. Upon trial before a jury there was verdict and judgment for the plaintiff. Defendant moves to set aside the verdict and for a new trial, upon grounds which will now be stated and considered. 1. It is insisted that the note should have been produced and offered in evidence· in connection with the deed of trust. We are of the opinion, however, that the production of the note was not sary. It had been merged in the judgment, and the latter had become the evidence of the debt secured by the deed of trust. It is well settled that where judgment is rendered upon a note it ceases to and the judgment becomes the evidence, and the only evidence, of the debt. Wyman v. Cochrane, 35 Ill. 154; Ohio v. Gallagher, 93 U. S. 206; Flagg v. Charlton, 26 Pa. St. 202; Freeman on Judgments, 180, 181. It does not follow, as contended by defendant's counsel,that the plaintiff lost or waived any right under the deed of trust by attempting to collect the debt due from defendant by means of a judgment at law and a general execution. A deed of trust, under the laws of Missouri, is simply a mortgage with power of sale, and. it is very clear that a change in the form of the debt from that of a promissory note into a judgment did not in anywise affect the rights or obligations of the parties under the deed of trust. The debt remained unsatisfied, and the deed of trust given to secure it continued in full force. Jones on Mortgages, §§ 1215, 1220, 1221; Lichty v. McMartin, 11 Ran. 565; Van Sant v. Allmon, 23 Ill. 3Q; Dunkley v. Van Buren, 3 John. Ch. 330. 2. It is also intlisted that the court erred in refusing the application of the wife of defendant to become a party to this Buit, and to be heard as such. It is very earnestly contended by counsel that inasmuch as the property in question was the homestead of defendant and his family, that therefore the wife of the defendant has, under the homestead law of this state, a present right of possession in her own right, independently of her husband,arid that she is therefore a necessary party to the present action of ejectment. The law of Missouri relating to homestead exemptions contains no provision limiting in any way the power of the husband and wife to alienate their homestead by deed of conveyance either with or without conditions. The power of the owner of a homestead to conveyor mort-
CONNECTICUT MUT. LIFE INS. CO. V. JONES.
gage the same is not restricted except by the regulations to conveyances of real estate in general. The statute is not framed with a view to interfere with the right of the owner of homestead property to dispose of it by deed, but· to protect it from sale under execution during the life-time of the owner, and to secure it to his widow and children as a homestead after his death. Such property, within a certain valuation, is exempt from sale under execution, and upon the death of the owner is vested by law in the surviviIlg members of his family. But there is nothing in the statute, and certainly nothing outside of the statute, to support the proposition that the wife of the owner, during his life-time, has any right of or claim orany kind in the homestead that may not be di vested by conveyance in which she joins; nor is there any force in the suggestion of counsel that the wife in this case released her dower interest. only. aJid not her homestead right. She joined in the deed, and must be: held to have conveyed all her interest. When the legal title to a lot occupied, or a homestead, is in the husband, he and his wife, by joining in an absolute conveyance thereof, may undC;>UQtedly'make the purchaser a good title; and their right to make a conditional sale, to execute a mortgage or deed of trust, is equally clear, unless the same is prohibited by statute. In re Oox, 2 Dill. 320; Babcock v. Hoey, 11 Iowa, 375; Pfeiffer v. Rhein, 16 Cal. 643. It is conceded that in general the wife is not a proper party to an a.ction of ejeotment for property in the possession of the husband, and in which she holds no separate estate in her own name. The possession of the husband is the possession of the wife. Bledsoe v. Simms, 53 Mo. 305. . . But it is insisted that because the property here is a homestead a different rule should prevail. We have alrea;dy seen that as against her own deed the wife oan have no separate present right of posses. sian, and we are therefore constrained to hold that the general rule is applicable to this case, and that she is not a proper party. 3. It is said that the sale under the deed of trust was void because the general execution was still in the hands of the marshal, and the defendant had until the fifteenth of September, the return-day of the writ, in which to satisfy the same by payment. It is true that the execution remained in fOJ;ce and was not necessarily returned prior to that date, but it is not true t4at the defendant had the right to postpone the sale under the deed of trust until the expiration of that period. He could deprive plaintiff of its lights under the deed v.8,no.5-20
, FEDERAL REPORTER.
of trust only by payment of the debt. The plaintiff's remedies were conourrent, and it had the right to putsue both or either, provided one satisfaotion only was reoeivea. Jones on Mortgages, § 1215 et seq.; Gilman v. Telegraph 00.91 U. S. 603. The motion is overruled.
(OirC'Uit Court, E. D. Pen,nsyloonia. July 8, 1881.)
I. ,TAX ON LEGAOIES- WHEN IT AOORUED-REMAINDER AFTER LIFE ESTATJllAoTS OF CONGRESS. '
A testator died in 1863, leaving by his will the income of his estate to his wife for life, and directed the corpus to be divided at her death among his children and grandchildren in certain shares. The widow died December 15, 1876. Held, that the legacy tax imposed upon the shares of the children and grandchlldren 'by the' act of July 1, 1862, accrued at the death of the' testator, and was therefore not repealed by the acts of June 30, 1864; and July 14, 1870.
2. SAME-AoT OF
The provision of act of .July 13, 1866, definipgthe time whEln ,the tax accruing under the act of 1864 is due, has no relation to the act of 18112, or to taxes which had accrued under it. Clapp v, Ma8on, 94 U. S. 589, dutingui8hed.
Motion for judgment upon the fol'lowing specialverdiot ina suit brought by the United States to recover a legacy tax:
"The jury find"(1) That Robel't V. Massey, late of the city of Philadelphia"died on the eighth day of Juue, 1863; that he left surviving his widow, Anna. K. Massey, and issue, three children.,a.nd theissU'e of a ,son who died in' bis life-time. i (2) That by his will, which after his death was duly admitted to probate at Philadelphia, and whereof the defendants are the survivillgexecutors, dUly qual1 ified, he gave to his wife the income for her life of all his residuary estate, and at her death directed the same to be divided among bis children and grandchild in certain shates therein set out. (3) That the personalty consti· tuting the residue of the testator's estate was ascertained aU,d adjudicated, by the settlement of the accounts of his exec.utorfl in the orphans' court for the city and county of Philadelphia, to be the sum of $149,714.50. (4) Tbat the widow, having received the income on this fund during her life, died oli the fifteenth day of December, 1876. .. If, under the above facts, the cour.t shall be of opinion that under the act of congress approved July 1, 1862, .there accrued a tax of three.quarters of 1 per cent. to the United States on the above fund, which was or !;lacarne paysaid testator, then the jury find able at and, after tl'le death of the widow for the plaintiff in the sum of $1,122.85. But if, under the above facts, the court shall be of opinion that the personalty aforesaid is not chargeable with any such tax as aforesai'd, then the juryfilld for the defendants."
*Reported by Frank P. Prichard, Esq., of the Phllatlelphia bar.