Schooler v. Schooler

• Citation: 18 Mo.App. 69
• Parties: MARILLA SCHOOLER AND I. N. SCHOOLER, HER HUSBAND, Respondents, v. SAMUEL SCHOOLER, Appellant.
• Decision Date: 25 May 1885
• Court: Court of Appeal of Missouri (US)

18 Mo.App. 69

MARILLA SCHOOLER AND I. N. SCHOOLER, HER HUSBAND, Respondents,

v.SAMUEL SCHOOLER, Appellant.

Kansas City Court of Appeals, Missouri.

May 25, 1885.

APPEAL from Jasper Circuit Court.--HON. M. G. MCGREGOR, J.

Affirmed.

Statement of case by the court.

This is an action of replevin instituted by the plaintiff, Marilla Schooler, a married woman, with whom is joined I. N. Schooler as her husband. The subject matter of controversy is certain household goods, and a cow and calf, alleged to be the property of the plaintiff, Marilla. The suit was brought in a justice's court, where the plaintiff recovered judgment. The defendant duly prosecuted his appeal to the circuit court. When the case came up there for trial before a jury, the following paper was filed in the cause:

“I hereby voluntarily dismiss the above suit.

I. N. SCHOOLER,

Plaintiff.”

On the hearing of said motion it was admitted that the plaintiffs, Marilla and I. N. Schooler, were husband and wife, and that plaintiff, I. N. Schooler, had, prior to the commencement of this action, abandoned his wife and co-plaintiff, Marilla Schooler, and had left this state, and was concealing his whereabouts from her. The court thereupon refused to permit said plaintiff to dismiss said suit, to which refusal so to do defendant excepted at the time.

The evidence of the plaintiff Marilla was as follows:

“That the property in controversy belonged to her; that the stove and household furniture was purchased for her and given to her at the time of her marriage to her co-plaintiff, who was a son of defendant, and a few days before she was to be confined her husband took her to her father's, and that during her confinement he and defendant carried away the same, and that defendant still holds possession of them, and did hold possession at the time of bringing this action. That the cow and calf were given to her by her husband soon after their marriage. That he drove them up to the house and called her out and said: ‘Here, Marilla, I give you this cow and calf for your own; take care of them.’ He then turned them over to me, and I milked the cow and fed and took care of both of them, until just before my confinement, when defendant's wife came and told me I ought not to be milking and feeding them. She said she would take them to defendant's pasture and milk the cow and let me have milk until I got well enough to look after them. That the value of the property was as stated in her petition.”

Cross-examined: The witness testified that the cow and calf belonged to her husband when they were married; that they had been kept at the defendant's farm prior to that time, and that after they were married, when her husband brought the cow home, he gave it to her; that they kept it a few months, when the cow and calf was, by her co-plaintiff and husband, taken back to his father's (the defendant), where they have remained ever since; that the stove in controversy was purchased by her husband, and paid for by defendant, at the time of their marriage; that at the time it was purchased her husband told her that he had purchased it for her, and that the stove was used by them while they kept house, and that when she went to her father's the stove was left in the house where they had lived.”

The evidence on the part of the defendant tended to show that he was the father of I. N. Schooler. The cow seems to have been raised as the property of I. N. Schooler, and when he married he took her to his home. When the cow was brought back to defendant's house, he testified that his wife bought her and the calf of I. N. Schooler; and he (defendant) bought the stove from him. He also claimed that he did not know the plaintiff, Marilla, made any claim to this property. This property was moved from the home of plaintiffs to defendant's when Marilla was confined.

The court gave the following instructions on the part of the plaintiff.

1st. “The court instructs the jury that if they believe from the evidence that Isaac Schooler gave the property in controversy to his wife, the plaintiff, then he could not afterwards sell the same without her written assent, and in order to constitute a gift between husband and wife, any words by him indicating a present gift of the property, would pass the title to her, notwithstanding the property was not at the time actually turned over to her, but remained in the common possession of both. But if said Isaac N. Schooler, after giving same to his wife, remained in possession thereof, and acted as the ostensible owner, and defendant bought said property, or any part thereof, in good faith, believing said Isaac N. Schooler to be the owner, the finding should be for defendant for such property.”

2nd. “The court instructs the jury that if they believe from the evidence that plaintiff, Mrs. Schooler, was, at the bringing of this suit, the owner of the property sued for, or any part thereof, and that defendant had the same in his possession or control, they will find for the plaintiff for the recovery of said property, and also assess the value of such property as you may find to belong to plaintiff in your verdict.”

3rd. “That if plaintiff, Isaac Schooler, bought the stove as a present to his wife, then such purchase, though made with his means or means borrowed from defendant, would vest the title to the stove in his wife, and he could not afterwards sell the same so as to defeat the wife's title, except by a written authority so to do from her.”

The court of its own motion gave the following instruction:

1st. “The court instructs the jury that if they find from the testimony that plaintiff, Isaac N. Schooler, purchased the stove and cow in controversy, and retained possession of the same and exercised acts of ownership over the same, and while in possession of the same sold the same to defendant, and the defendant purchased the same in good faith, for a valuable consideration, the jury will find for the defendant as to such property, notwithstanding such property may have been given to the plaintiff, Marilla Schooler, by her husband, if at the time of said purchase defendant did not know that same had been given to his wife, and purchased same in good faith, believing I. N. Schooler to be the owner.”

The defendant asked and the court refused the following instructions:

1st. “The court instructs the jury that if they find from the testimony that the plaintiff, Isaac Schooler, purchased the stove and cow in controversy, and retained possession of the same, and exercised acts of ownership over the same, and while in possession thereof sold the same to defendant, and the defendant purchased the same in good faith, paying full value therefor, the jury will find for the defendant as to such property, notwithstanding the property may have been given to the plaintiff, Marilla Schooler, by her husband.”

2nd. “That if the jury find from the testimony that the plaintiff, Isaac Schooler, brought the property in controversy to the house of defendant, in defendant's absence, and left the same there with a request that it be kept until plaintiff called for the same, and that no demand was made for the same, and that defendant made no claim to the property, the jury will find for the defendant as to such property.”

The jury found the issues for the plaintiff, and the court rendered judgment accordingly. From which the defendant has duly prosecuted this appeal.

PHELPS & BROWN, for the appellant.

I. The court erred in refusing to dismiss on application of plaintiff, I. N. Schooler. It was no answer to say he had abandoned his wife, for this did not deprive him of his right to dismiss this suit.

II. The court erred in giving plaintiff's instructions. To constitute a valid gift, actual delivery is indispensable to divert the possession from the donor. Mahan v. U. S., 14 Wall. 143; Benjamin on Sales, Vol. p. 3, note 5.

III. No gifts inter vivos will confer title unless there be a positive change of possession. Reeves v. Capper, 5 Bing. (N. H.) 136; Peeler v. Guilkey, 27 Texas 356. A gift cannot be established by showing a joint possession of donor and donee. Young v. Young, 80 N. Y. 422, and cases cited.

IV. The court erred in refusing instructions asked by defendant and in that given of its own motion. The property had never been demanded of defendant, and until then replevin was not maintainable. Talcott v. Belding, 46 How. (N. Y.) 419; Gilchrist v. Moon, 7 Iowa 9; Ingalls v. Bulkley, 13 Ill. 315.

V. The court gave erroneous and contradictory instructions tending to mislead the jury. Goetz v. R. R., 50 Mo. 472; Shed v. Augustine, 14 Kansas 282; State v. Nauert, 2 Mo. App. 289.

A. L. THOMAS for the respondent.

I. The court committed no error in refusing to allow plaintiff, I. N. Schooler, to dismiss the suit. Having abandoned his wife and left the state, his wife could proceed alone. Phelps v. Waters, 78 Mo. 320.

II. The instructions given for plaintiff and on the court's own motion are more favorable to the defendant than the law. A delivery and change of possession is

not requisite to a valid gift from husband to wife. Davis v. Zimmerman, 40 Mich. 24.

III. The instructions asked by defendant were properly refused. No demand of the property was necessary; if defendant desired to take advantage of a failure to demand, he should have tendered the property to plaintiff and the damages. Sect. 1018, Rev. Stat. Mo. 1879. Bringing of suit was a sufficient demand. The property was not in defendant's possession under any contract with plaintiff, nor with her assent. Irwin v. Wells, 1 Mo. 9; Primm v. Cobb, 63 Maine 200.

IV. If the stove was bought by the husband as a present to his wife, it was bought for her, and the title vested in her, and never was in the husband. Wheeler v. Wheeler, 43 Conn. 503.

Opinion by PHILIPS, P. J.

1. The action of the court in refusing to dismiss the suit at the instance of I. N. Schooler, is assigned for error. It would be sufficient to say in respect to this...