Glover v. Alcott

• Decision Date: 18 November 1863
• Citation: 11 Mich. 470
• Court: Michigan Supreme Court
• Parties: John G. Glover v. Deborah B. Alcott

11 Mich. 470

John G. Glover v. Deborah B. Alcott

Supreme Court of Michigan

November 18, 1863

Heard October 22, 1863 [Syllabus Material] [Syllabus Material]

Error to Kalamazoo Circuit. The case is sufficiently stated in the opinion of Justice Christiancy.

Judgment reversed, with costs, and a new trial granted.

N. A. Balch, for plaintiff in error:

The statute does not authorize a married woman, living and cohabiting with her husband, to invest her property in general trade, or herself to engage in general trade, such as the proof shows in this case: Gamber v. Gamber, 28 Penn. St., 363; Keeny v. Good, 21 Penn. St., 349; Switzer v. Valentine, 10 How. Pr. R., 100, and 4 Duer. 96; Lovett v. Robinson, 7 How. Pr. R., 105; Hand v. Cass, 9 Barb. 366; Freeman v. Orser, 5 Duer 479; Raybold v. Raybold, 8 How. Pr. R., 308; Marsh v. Hoppock, 3 Bosw. 478; Gage v. Dauchy, 28 Barb. 622. The statute simply gives the wife the right to acquire, hold and dispose of her property, without the consent of her husband, but not to use it contrary to the rules and practice of the common law which prevail here.

The whole business was carried on with borrowed capital. The husband, then, and not the wife, nor her estate, would be liable to pay the debts incurred to obtain this capital. He was actually engaged in using it. It was not capital obtained by the wife in any of the modes mentioned in the statute. If obtained legally, it must have been obtained under common law rules and restrictions, and when thus obtained and placed in possession of the husband, it would by the common law be his, with all the outgrowth, issues and profits thereof.

E. C. Hinsdale, for defendant in error:

We insist, that if a married woman has a farm for her separate property, she may, under our liberal statutes relating to her rights, carry it on and have the crops as her own. If it is wild land, she may improve it and then carry it on. If it is a mill, she may carry on the business for which such property is alone valuable. If a valuable water power, she may with her own money and property improve it, and put it in a situation to be profitable, and then carry on the business with it thus improved. In no other way could she reap the full benefit of the provisions of the statute.

By this "the rents, profits, and income," of her estate are made her own, and her property held at her marriage, and all to which she may afterwards become entitled "by gift, grant, inheritance, devise, or in any other manner, shall be and remain" her property, free from her husband's liabilities.

The wife may purchase property, for this method of acquiring it is plainly included in the broad phrase "in any other manner"; and if she may make one purchase, she may make a thousand. She may "sell" her property, and this power carries with it the right to receive the consideration, whether of money or other property. She may "transfer" her property for a consideration paid therefor.

To carry on a business with her separate property is but to repeat the acts which the statute expressly gives her the power to perform: 29 Penn. St., 43; 39 Me. 119; Ibid., 125.

In Wisconsin and New York, the statutes on this point omit the words "in any other manner," as well as the provision making the wife liable on her contracts in relation to her property, and authorizing her to bring suit as if she were unmarried.

In the Supreme Court of Wisconsin it has been held, under the statute cited, that a married woman may not engage in trade, only so far as it may be necessary to manage the property which she may own: 5 Wis. 245.

Even under this decision, the defendant in error might carry on the milling business in this case.

In New York there has been no decision in the Court of Appeals, but there have been two or three decisions in other courts there, adverse to our position. Such are, 3 Bosw. 478; 5 Duer 479.

But the decisions in New York are not harmonious. In another case it is held, that a married woman may carry on business with her separate property : 2 Bosw. 92.

The decision in this case is entirely inconsistent with that in 5 Duer, and the two are utterly irreconcilable.

But even if the statute does not authorize the carrying on of business like this by the wife, still the avails of the business would not belong to the husband: 15 Ind. 254; 3 Allen 131.

Obtaining money on a mortgage of the wife's lands created a charge upon them. The fact that the husband gave his notes only made the debt prima facie his; and this could be rebutted by proof. At common law, the execution by a feme covert of a security, as a bond or note, alone or jointly with her husband, purporting to create a personal demand, and not referring to her separate property, creates a charge upon her property, which can be enforced in equity: 2 Story Eq. Juris., § 1400; 1 Bro. C. C., 16; 15 Ves. 596; 17 Ves. 365; 1 Cr. & Ph., 48; 5 B. & P., 162; 3 Beav. 489; 4 Beav. 319; 13 B. Monr., 381; 16 B. Monr., 482; 26 Ala. 332; 22 Wend. 526.

Christiancy, J. Martin, Ch. J. and Manning, J. concurred. Campbell, J. dissenting.

OPINION

Christiancy J.:

This was an action of trover brought in the court below by the defendant in error, who was a married woman residing with her husband, to recover damages for the conversion of certain bags, barrels, and a quantity of mill feed. The defendant below (plaintiff in error) justified the taking and conversion as a constable, by virtue of an execution upon a judgment against William W. Alcott, the husband of the plaintiff below. The judgment was rendered on the 23d day of June, 1860, and the execution issued and levy made on the 29th day of June, 1861. It does not appear when the indebtedness accrued, upon which the judgment was obtained; and so far as this point may be material it must therefore be held to have accrued at the date of the judgment.

The mill feed was manufactured at the Alcott mills, and stored in the Alcott warehouse so called. The mill and the storehouse seem to have been carried on together, and the business done in the name of "W. W. Alcott, agent. "He testifies that he managed and transacted the entire business, and that, in doing so, he acted as the agent of his wife; but one of the main questions in the case was, whether it was in truth the business of the wife, or that of the husband.

The land on which the mill and storehouse were erected was conveyed to the wife by two separate deeds, in April, 1859; but it does not appear whether it was a gift or a purchase, or by whom the consideration, if any, was paid. Nor does it appear whether she had, at the time of the conveyance, any separate property or capital of her own. The whole business of building the mill and warehouse was superintended by the husband, and, as he says, done in the name of "W. W. Alcott, agent." The sign on the mill was, on one side, "Alcott's mills," on the other "W. W. Alcott," and on the warehouse the same. It does not clearly appear how, or by whom, the means were furnished with which the mill and warehouse were built, though it appears probable that some irons of an old mill previously burnt upon the premises, or the proceeds of them, went into the new mill; and there is some testimony having a slight tendency to show that her credit to a small amount was used in that way--though most of the witnesses swear that they knew nothing of the fact of W. W. Alcott being agent for his wife, except what he told them, and the business appears all to have been done with him under the name and style of "W. W. Alcott, agent." It appeared, however, that the joint note of the husband and wife, secured by a mortgage executed by both upon this real estate, was given for twelve hundred and fifty dollars of the amount. But the title to the real estate is not directly in controversy, and is relied upon by her only as the basis of her right to the personal property in dispute, which is claimed to have arisen as the proceeds of the use of the property, or rather as the joint product of the real estate, the capital or credits used in the business, and the services of the husband as her agent. And, as the debt upon which the judgment was obtained must be considered as having accrued subsequent to the conveyance to her and the erection of the mill and warehouse (which seem to have been completed in the fall of 1859), she must, for the purposes of the present case, be treated as the owner of the real estate, and entitled to the benefits legitimately arising from such ownership, at least until it should be shown by the defendant below, that the conveyances were void for actual fraud as to then existing or subsequent creditors--which it might perhaps have been competent for the defendant to do. (See cases collected 1 Am. Lead. Cas., 71 and 72.) But this was not done, and no such question arises.

But it is essential to a full understanding of the case to state somewhat fully the nature of the business carried on, and the mode in which it was transacted. As already stated, it was all done by the husband, and in the name and style of "W. W. Alcott, agent," and not in the name of any other person as principal; and there is no evidence that she ever performed or directed a single act, or even that she had any knowledge of the mode in which it was conducted, or of its nature or amount. The business consisted in the purchase of grain, manufacturing it into flour, selling the flour shipping it to an eastern market, disposing of the mill feed, etc., and doing custom work. From the fall of 1859, when it commenced, down to about the time of the suit, its amount was from fifty thousand to one hundred thousand dollars per year; and, as the husband testifies in her behalf, "all or nearly all" of the business "was done on...