Arp v. Jacobs

• Decision Date: 13 October 1891
• Citation: 27 P. 800,3 Wyo. 489
• Parties: ARP v. JACOBS
• Court: Wyoming Supreme Court

27 P. 800

3 Wyo. 489

ARP v. JACOBS

Supreme Court of Wyoming

October 13, 1891

Error to district court, Laramie county; WILLIS VAN DEVANTER Judge.

Ejectment by Mary M. Jacobs against Henry A. Arp. Judgment in plaintiff's favor, and defendant brings error. Affirmed.

Judgment affirmed.

Bryan &amp Thompson, for plaintiff in error.

John H Symons, for defendant in error.

GROESBECK, C. J. CONAWAY and MERRELL, JJ., concur.

OPINION

GROESBECK, C. J.

The defendant in error, Mary M. Jacobs, brought suit against Henry A. Arp, the plaintiff in error, in the district court for Laramie county, to recover the possession of certain parcels of land situate in the city of Cheyenne, alleging her ownership in fee of the demanded premises, and praying damages for the detention thereof, and for the rents, issues, and profits. The plaintiff in error answered, denying each allegation in the petition except the averment of his possession, and for a further defense alleging that in May, 1881, he purchased and paid for the premises with his own money, and placed all the improvements thereon at his own expense; that, at the time he purchased the property, he had the same conveyed to his wife, Magdalena C. Arp, as he then expected to seek employment and a home in New Mexico, and desired to have his wife sell the property and make the proper conveyance, thus avoiding the delay of sending to New Mexico for the execution of the deed by him; that he altered his purpose, and remained at Cheyenne, and being a householder, and the head of a family, consisting of himself, his wife and two children, he entered upon the said premises as a homestead, and has since continuously lived there and occupied the same as such, for a period of about nine years; that in 1887 his wife deserted and left the said homestead, and has ever since remained therefrom. He charges upon information and belief that his wife made a pretended conveyance of said premises to said Mary M. Jacobs, for the purpose of enabling them to get possession thereof, which conveyance was only colorable, the plaintiff acquiring no title thereby; that he is now, and ever since the purchase of said premises has been, the owner and holder of the equitable title thereto, and now is entitled to the possession thereof, all of which was well known to the plaintiff at the time and long before she made said pretended purchase. He prayed judgment for the right of possession, for costs, and that his title to said premises be forever quieted as against the plaintiff in the suit and persons in privity with her, and for all other proper relief. To this answer the plaintiff in the court below filed a reply denying each allegation set forth therein as a defense to the cause of action alleged in her petition, and further alleging that on the 12th day of March, 1890, she purchased the premises described in her petition from one Magdalena C. Rushworth, who was formerly the wife of said Arp; that said Rushworth and Arp were married October 2, 1877, and shortly thereafter they removed to Cheyenne, Wyo., where, on June 22, 1881, while they were living together as husband and wife, Mrs. Arp purchased from one Richard Blackstone, who was the owner thereof in fee, the lots described in said petition, paying therefor the sum of $ 75, from her own personal earnings for several months prior to that time, taking the deed in her own name; that the buildings and other improvements erected on the lots were also paid for out of the earnings of Mrs. Arp; that two children were born as the fruit of said marriage; that said Arp for one year or over neglected and refused to provide the common necessaries of life for the support of his wife and children, and because of this and other cruel and inhuman treatment Mrs. Arp was obliged to leave said premises to make a living for herself and children, whom she took with her; that on the 28th day of January, 1888, Mrs. Arp commenced a suit against her husband for divorce in the district court for Albany county, Wyo., on the grounds above stated; that personal service of the summons in said suit was had upon said Arp; that on the 26th day of May, 1888, a final decree and judgment for divorce were granted to Mrs. Arp, and the custody of the children awarded to her; that said Arp made no claim whatever in said suit to the said premises now claimed by him.

The cause was heard, tried, and determined by the court below, and at the request of the plaintiff in error the court stated separately its findings of fact and its conclusions of law thereon. They are in substance as follows: On June 22, 1881, defendant, Henry A. Arp, and Magdalena C. Arp were husband and wife, and were living together as such at Cheyenne, Wyo., and continued such relation and cohabitation until January, 1887; that on said June 22, 1881, Arp with his own separate means purchased and paid for the real property described in the petition, and at his request the same was conveyed to his wife, and thereafter Arp and his wife occupied said property as their home while living together, and during that time valuable improvements were erected thereon by him, and were paid for by him, without any understanding or agreement that he should be reimbursed therefor; that in January, 1887, Arp and his wife separated, and did not live together thereafter; that in May, 1888, Mrs. Arp obtained a divorce from her husband; that Arp continued to reside upon and occupy said premises from the time of the separation; that at the time of the purchase of the premises, or at any time, there was no understanding or agreement that Mrs. Arp should hold the said realty in trust for her husband, and the conveyance to her was not made as a matter of convenience for her husband; that on March 12, 1890, Mrs. Arp, for a valuable and adequate consideration, by her separate deed, conveyed the said realty to Mary M. Jacobs, the plaintiff, who knew that Arp was in possession thereof, claiming to be the owner; that on March 13, 1890, the plaintiff, Jacobs, informed Arp of her purchase, and demanded possession of the premises, but Arp refused to vacate the same, and still continues in possession thereof; that the reasonable rental value of the premises is $ 40 since said March 13, 1890; that said property was always returned for taxation and assessed in the name of Mrs. Arp, and since the separation, in January, 1887, the taxes thereon were paid by her from her own separate means. As its conclusions of law on the foregoing facts, the court finds that Arp, the defendant, caused the realty to be conveyed to his wife as a gift and advancement to her from him, and thereupon the same became the separate property of the wife, and subject to her sole disposition; that the plaintiff, Mary M. Jacobs, had and still has the legal estate in, and was entitled to the immediate possession of, said realty; that defendant, Arp, has kept her out of the same unlawfully, as alleged in the petition. The court assessed the damages of the plaintiff at $ 40, and gave judgment for the recovery of the premises, for damages and costs, and awarded execution therefor.

We have found it necessary, under the assignment of errors, to thus review at length the pleadings of the parties, and the findings of fact and conclusions of law. It must be done in order to clearly comprehend the matters complained of. The evidence adduced in the trial court was not brought here for review, and we are to determine solely whether or not the conclusions of law were correctly found and determined by the trial court on its findings of fact. We must take as absolutely true the facts as found from the evidence, as a guide in settling the law of the case.

1. It is insisted by plaintiff in error that the conclusion that the property was conveyed to Mrs. Arp, at the instance of her husband, as an advancement to her, is immaterial, as no such issue was made by the pleadings. On the one hand, Arp claims that he paid for the property, and had the conveyance made to his wife as a matter of convenience, and on the other it was alleged that Mrs. Arp paid for the property and made all the improvements from her own personal earnings. But these are collateral averments, and no way affect the question of title and possession on the part of Mrs. Jacobs. It becomes useless in this cause to inquire how Mrs. Arp came by her title. If she was the owner, Mrs. Jacobs, who deraigns title from her, is the owner. Whether Mrs. Arp bought the property, or it was given to her, is of no importance. The district court found that she was the owner, and that there was no understanding or agreement between her and her husband at the time of the purchase, or at any time, that he should be reimbursed for his outlays thereon, or that she should hold the title as trustee in trust for her husband. The finding was to the effect that the title was directed to be put in her name as the property was a gift and advancement to her, and not as a matter of convenience. The defense of Arp is an equitable one, and the court had a right, being possessed of the whole matter in dispute, to make such a judgment or decree as was warranted by the evidence, without reference to any partisan allegations in the pleadings.

2. It does not matter that the court below found that the plaintiff in error made all the advances and furnished all the moneys for the purchase and improvement of the property. A husband free from debt, has an undoubted right to purchase real estate and have it conveyed to his wife, and when this is done without any fraudulent intent the property conveyed becomes her separate property, --as much so as if purchased by her with money that she had obtained prior to coverture. Wing v. Goodman, 75 Ill. 159. Courts of equity have recognized the duality...