Bettes v. Magoon

• Citation: 85 Mo. 580
• Parties: BETTES et al. v. MAGOON, Appellant.
• Decision Date: 30 April 1885
• Court: United States State Supreme Court of Missouri

85 Mo. 580

BETTES et al.

v.MAGOON, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

S. P. Sparks for appellant.

(1) The court erred in permitting the plaintiff to read in evidence the policies of insurance issued to her on the property in controversy; being in the nature of her declaration of ownership, were inadmissible. Farmer v. Belden, 9 Mo. 787; Hambright v. Brockman, 59 Mo. 57; Watson v. Bessel, 27 Mo. 220; 54 Mo. 419. (2) The bulk of the property in suit being personalty in possession, became that of her husband absolutely, by operation of law, long before the enactment of section 3296. The court erred in refusing defendant's instructions three and four. Polk v. Allen, 19 Mo. 467; Walker v. Walker, 25 Mo. 307; Hockaday v. Sallee, 26 Mo. 219; Kelly's Married Women, 63. (3) Section 3296, being wholly prospective in its operations, did not divest the title thus acquired by the husband, nor could it without being retroactive and unconstitutional. Frye v. Kimball, 16 Mo. 9; Routsong v. Wolf, 35 Mo. 124; A. & P. R. R. Co. v. St. Louis, 66 Mo. 228; Ex parte Bethurem, 66 Mo. 545; Williams v. Courtney, 77 Mo. 588. (4) Plaintiff's contention is that the title to none of the property vested in the husband jure mariti, but remained in the wife by virtue of his and her acts and conduct respecting it, subsequent to its acquisition, so that the instruction given by the court of its own motion, submitting the theory of a gift from the husband to her after it became his, was erroneous, there being no evidence to warrant it. (5) Conceding that the husband could have taken the property into his possession with the intention of not reducing the same, and that his possession in such case would not be a reduction, but to overcome the presumption of law, and convert the husband into a trustee of the wife, the evidence must be clear and conclusive. His subsequent conduct would be wholly insufficient to establish its existence at the time of the acquisition. Holthaus v. Hornbostle, 60 Mo. 442; McCoy v. Hyatt, 80 Mo. 130; 2 Story Eq. Juris., secs. 1381, 1382 (Ed. 1870). (6) A gift of a personal chattel by a husband to his wife is void at law, on account of the unity of husband and wife. The possession of the wife is the possession of the husband, and the transfer of the possession, which is essential to a gift, is prevented. To be upheld in equity, proof of the gift must be clear and conclusive. 2 Kent Com. 438; 1 Bell H. & W. 466; Beard v. Beard, 3 Ark. 72; Casswell v. Ware, 30 Ga. 267; Taylor v. Fire Dep't, 1 Edw. Ch. 294; 2 Edw. Ch. 333; Jennings v. Davis, 31 Conn. 134; Bradshaw v. Maxfield, 18 Tex. 21; Skillman v. Skillman, 2 Beas. 403; 60 Mo. 442; McCoy v. Hyatt, supra. Since there could be no delivery of the possession between the husband and wife, a gift to a wife by a husband, without the intervention of a trustee, according to section 2499, Revised Statutes, is void, and the last instruction asked by defendant should have been given.

S. T. White for respondent.

(1) The defendant cannot complain of the theory of the trial court on the rights of married women, either as to their separate property or under section 3296, upon which this case was tried. Under instruction number three, for plaintiff, number one for defendant, and the instruction given by the court, they must have found from the evidence that the property they considered her entitled to had been acquired by her by gift or purchase, with her separate money and means, since March 25, 1875. The only construction this court has given this statute has been in Rogers v. Pike County Bank, 69 Mo. 160; McCoy v. Hyatt, 80 Mo. 130. (2) The admission of policies of insurance and their renewals from February 2, 1875, was proper as part of the res gestæ. 1 Greenl. Evid. (Red. Ed.) secs. 108, 108 a, and 109; State ex rel. Schneider, 35 Mo. 533; Davitt v. Donnelly, 38 Mo. 482; Burgert et al. v. Borchert et al., 59 Mo. 80. (3) Granting that the evidence did not show a separate estate in Mrs. Bettes, in her own property before March 25, 1875, of a good part of this property it undoubtedly established a gift to her under the statute. Gentry v. McReynolds, 12 Mo. 533; Coughlin v. Ryan, 43 Mo. 99; Welch's Administrator v. Welch, 63 Mo. 57; Tennison v. Tennison, 46 Mo. 77. (4) The uncontradicted evidence showed there was a separate estate of all the property in Mrs. Bettes from 1856, and the court should have so declared and ordered the jury to assess damages as requested by plaintiff. Holthaus v. Hornbostle, 60 Mo. 442; Welch v. Welch, 63 Mo. 57; Coughlin v. Ryan, 43 Mo. 99; Tennison v. Tennison, 46 Mo. 77; McCoy v. Hyatt, 80 Mo. 130.

HENRY, C. J.

This is a suit instituted by husband and wife for recovery of certain personal property specifically described, of which it is alleged the wife is the owner in her own right and that the defendant forcibly took the same from her possession. The trial resulted in a judgment for plaintiffs, from which this appeal was taken. The property was seized and sold under an execution against the husband by a constable, to whom defendant executed an indemnifying bond. The evidence disclosed the following facts: Plaintiffs formerly lived in Canada, and part of the property in dispute was bought by Mrs. Bettes with means which she inherited from her grandfather. This was after the year 1856, when plaintiffs intermarried, but long prior to 1875; part of the property, the husband testified, was purchased with proceeds of a homestead he had given Mrs. Bettes prior to their marriage. That the property was brought from Canada to Holden in this state, in 1866, and that Mrs. Bettes owned and controlled it, since May 1856. He further testified that he had always treated it as hers and that with respect to his property she treated with strangers as if it was hers, and continued to do so after 1875, just as she had previously done. He was corroborated by other witnesses, as to Mrs. Bettes' ownership of the property in Canada, and she testified substantially to the same facts testified to by her husband. The property was in a house occupied by plaintiff as a residence and owned by her.

The testimony on the part of the defence was to the effect that H. C. Bettes attended the sale and told the purchaser, Steele, what property to bid for and Steele bid as Bettes directed.

The court, at the instance of plaintiff, gave the following instructions:

“1. The court instructs the jury that the seizure of the property in controversy and the sale thereof under the execution is an actual conversion of the property, and the measure of damages is the actual value of said property at the time of the seizure, with six per cent. interest from said sale.”

“2. The court instructs the jury that the joinder of H. C. Bettes with Mrs. A. T. Bettes is required by law to enable her to sue and protect her rights and that he, by such joinder, is a merely nominal party to this action that the law requires. If the jury find from the evidence that any portion of the property in controversy was acquired by the plaintiff Amanda T. Bettes, either by gift or purchase with her separate means, since the twenty-fifth day of March, 1875, then the jury will find for plaintiff in such sum as they may believe from the evidence was the value of such property at the date of seizure, with six per cent. interest from the sale thereof.”

“4. The court instructs the jury, that defendant by signing and delivering the bond, approved in evidence, placed himself in the same position as to Mrs. A. T. Bettes as if he himself had actually made the seizure of the property instead of the officer, and if you find that the property sued for was the property of Mrs. A. T. Bettes, you must find against this defendant for the sum that she was damaged by said seizure.”

For defendant the court gave the following:

“1. The court further instructs the jury that prior to the twenty-fifth of March, 1875, to constitute a reduction to possession, by the husband, of the personal property or money of the wife it was not necessary that the husband should have actually used and occupied the same, but it was sufficient if such property was in...