Gentry v. McReynolds

• Decision Date: 31 October 1849
• Citation: 12 Mo. 533
• Parties: JOSHUA GENTRY, ADM'R, v. JOHN MCREYNOLDS, ADM'R.
• Court: Missouri Supreme Court

12 Mo. 533

JOSHUA GENTRY, ADM'R,

v.JOHN MCREYNOLDS, ADM'R.

Supreme Court of Missouri.

October Term, 1849.

ERROR TO MARION CIRCUIT COURT.

DRYDEN, for Plaintiff.

1st. Husband and wife are one in law, and all compacts and agreements between them during coverture, are void at law. So of the agreement of Henry in this case, to permit his wife to make profit of his industry and the products of the farm. 1 Blacks. Com. 442; 2 Blacks. Com. 433; Coke's Litt. 112 a, 187 b. 2nd. Whatever may be the rights of the wife in equity to her earnings during coverture, they are at law the absolute property of the husband, and on his death pass to his administrator. 2 Bac. Abr. 27-8, title Baron & Feme, D.; 3 Bac. Abr. 65, title Executors and Administrators, 4 H. 3rd. If Mrs. Henry had any right to the money now in controversy, it was an equitable right, and as such cannot be interposed as a defense to the legal right of the administrator. If any right, she has her remedy in equity and not at law.

REDD, for Defendant.

1. The foundation of this action is an implied promise. To raise that implied promise, the plaintiff must prove that defendant has received money belonging to his intestate. Upon this evidence the law will imply the promise, unless the defendant can show that she had a legal or equitable right to retain it. Comyn on Contracts, 263, 266, or Library ed. 316. 2. Money acquired by the wife during coverture, and held by her as her separate purse, with the consent of her husband, is her separate property, and she has an equitable right to retain it against her husband or his administrator. Slanning v. Style, 3 P. Williams, 337, 338; Graham v. Londondery, 3 Atkins, 393-4-5, side page; Lucas v. Lucas, 1 Atkins, 271-2, side page; 1 Maddox Ch. 471, top page. 3. The equitable ownership of the wife is a good defense in this form of action, money had and received. 4. This defense is good at law; any defense will avail in this action which shows that the plaintiff is not entitled, ex equo et bono, to the whole or any part of this demand. Comyn on Contracts, 266 or 316; 2 Burr. 1010, Moses v. McFerlan; Dale v. Sollett, 4 Burr. 2134. 5. The very gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of mutual justice and equity to refund the money. 2 Burr. 1012.

PRATT, on same side.

1. A husband may make gifts to his wife, and deal with her, and permit her to retain her earnings, &c. 2 Story's Eq. p. 603, § 1375. 2. In the case of Slanning v. Style, 3 P. Williams, 337, the wife was allowed not only to keep the earnings, recognized the dealings of husband and his wife, and as he submitted to borrow of his wife £100 admitted it to be proved against his estate. 3. The husband could not sue the wife at law, nor could his...