Cottrell v. Spiess
| Decision Date | 28 June 1886 |
| Citation | 23 Mo.App. 35 |
| Parties | BESSIE M. COTTRELL, Respondent v. ADOLPH SPIESS, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.
Reversed and remanded.
The case is stated in the opinion.
R. M ROBERTSON and SAMUEL P. SPARKS, for the appellant.
I. In the absence of proof of the statutes of Nebraska, where the common law was in force, courts will presume the existence of the common law in that state, and that it is the same as that of our own. White v. Chaney, 20 Mo.App. 389; Flats v. Mulhall, 72 Mo. 522; Goldsoll v. Chat Bank, 80 Mo. 631; Charlotte v. Chouteau, 16 Mo 102. By the common law of this state the acquisitions of the wife inured to the benefit of the husband, by becoming his property jure marite, and, of course, liable for his debts. No evidence having been offered to show that the statute law of Nebraska had superseded the common law, the court erred in giving plaintiff's instructions on that point, and refusing those of defendant.
II. The husband may create a separate estate in the wife, as to personalty, by acts, conduct and words, but they must be unequivocal and the proof clear and satisfactory; but not, as in this case, when the property has been mingled with the husband's and he has acquired credit upon the faith of ownership of it. McCoy v. Hyatt, 80 Mo. 130.
III. The doctrine that a married woman may estop herself, by her actions and conduct, as to her separate estate, is well established. Rannells v. Gerner, 80 Mo. 474; Bigelow on Estoppel, 443. The plaintiff, in this case, stood by and witnessed in silence her husband purchase an interest in the hotel property, and conduct the business in his own name, obtain credit upon the faith of such ownership, with property, which she now asserts, was at the very time her separate property. This she ought not to be permitted to do to the prejudice of creditors. McCoy v. Hyatt, supra; Connolly v. Branstler, 3 Bush (Ky.) 702.
IV. In the absence of fraud, malice, gross negligence or oppression, the principle of compensation governs the admeasurement of damages, and the court erred in allowing the jury to award exemplary damages. Engle v. Jones, 51 Mo. 316; Seibel v. Simon, 72 Mo. 526; 1 Suth. Dam. 173; 3 Ibid, 367.
V. Declarations of plaintiff, respecting her claim to the property, were clearly inadmissible in any theory of the case, and the court erred in admitting it, and its action was duly excepted to.
S. T. WHITE, for the respondent.
I. A husband may make a valid gift to his wife. The gift to plaintiff by her husband in 1879 was good against his creditors, as to debts contracted after the gift. McCoy v. Hyatt, 80 Mo. 130; State to use, etc., v. Smit, 20 Mo.App. 50; Bowen v. McKean, 82 Mo. 594; State ex rel. Goldsoll v. Bank, 80 Mo. 626; Kidwell v. Kirkpatrick, 70 Mo. 214; Baugert v. Baugert, 13 Mo.App. 144; Bettes v. Magoon, 85 Mo. 500.
II. Even if the law of Nebraska is presumed to be that the personal property of the wife belongs to the husband, yet, after the property is removed to this state, the husband may donate the same to his wife, and it will become a valid gift under the laws of 1875 in the absence of any fraud upon existing creditors. And the actions and conduct of the husband and wife in reference to the property, and their mode of treatment of the same, are facts from which the jury may infer the existence of the gift. Cases cited above.
III. The action of Spiess in taking a mortgage of plaintiff on the property seized, and receiving from her money that was furnished by her father as a gift to her, and from the sale of her lease, in payment of the mortgage debt, estop him from asserting that she was not the true owner.
This action grew out of the seizure of personal property under a writ of attachment sued out by defendant against D. H. Cottrell. Plaintiff, who is the wife of said D. H. Cottrell, claimed the goods as her separate property, and sues the defendant in conversion, coupled with the allegation that the defendant was actuated by malice and was guilty of oppression in the matter. The plaintiff recovered judgment, from which defendant prosecutes this appeal.
I. The property in question was employed in a hotel, as furniture, kept in Warrensburg, Johnson county. Plaintiff testified that this property was bought by her with the proceeds of money given her by her husband, and of certain notes, the consideration of which was the purchase money of land sold by her husband, which land belonged to him, but the notes were executed to her, and given her by her husband. This occurred in the state of Nebraska prior to their removal to Missouri, perhaps in 1879.
Appellant contends, and asked the trial court to so declare the law, that as there was no proof adduced as to what the statute law of the state of Nebraska was, we must assume that the common law was in force there at the time of the alleged gifts. This may be conceded. White v. Chaney, 20 Mo.App. 389. But does it follow, as contended by appellant, that the property so given was not her separate estate, at common law, and became subject to the husband's debts on its transfer to this state?
A reference to the authorities, such as Meyers v. McCabe, 73 Mo. 236, and White v. Chaney, supra, where it was held that the acquisition of personal property by the wife, without more, at common law, enures to the benefit of the husband, will show that they were instances where the property came to her by gift, bequest, or inheritance, or the like, from other source than the husband, and where the husband had done no act of renunciation of his marital rights in favor of her sole dominion over the property.
At common law the husband may make a gift of personal property to the wife. Welch v. Welch, 63 Mo. 59. The purpose of the husband to create in her a separate ownership may be inferred from her long and uninterrupted control over it with the acquiescence of the husband. McCoy v. Hyatt, 80 Mo. 135. The very fact that the husband, as testified to by the plaintiff, allowed her to take and keep certain money which was paid him in gold in the course of his business, and had the notes for the purchase money to the land, sold in Nebraska, executed to her, if delivered to her and kept by her, were acts indicative of a purpose to create in her a separate estate. And this he had a right to do, if done in good faith, as against subsequent creditors.
II. Among the instructions asked by the defendant and refused by the court...
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