Hackett v. Moxley

• Decision Date: 25 April 1896
• Citation: 34 A. 949,68 Vt. 210
• Parties: HACKETT v. MOXLEY.
• Court: Vermont Supreme Court

34 A. 949

68 Vt. 210

HACKETT

v. MOXLEY.

Supreme Court of Vermont. Windsor.

April 25, 1896.

Appeal in chancery from Windsor county; Taft, Chancellor.

Bill in equity by Charlotte W. Hackett against Lorenzo D. Moxley. There was a decree pro forma for the oratrlx, and defendant appeals Reversed.

Tarbell & Whitham and D. C. Denison. for oratrix.

Hunton & Stickney, for defendant.

THOMPSON, J. October 4, 1866, the defendant married Abby Hackett. At the time of her marriage, she, with her sisters, Sally and Hannah, owned a farm in Tunbridge. She acquired her title thereto November 7, 1854, by a warranty deed from her father to her and her sisters. Her title was in fee. While she owned a share of the farm after her marriage to the defendant, it was not her separate estate. "Separate estate in a married woman involves, as the characterizing fact, that she holds it to her sole use, in exclusion of the rights of the husband." Frary v. Booth, 37 Vt. 78. There was no such limitation in this case. April 15, 1871, this farm was sold at auction by order of the Orange county court, upon petition of Hannah for partition. The net share of each sister in the proceeds of the sale was $547.48. At this sale, the defendant purchased the farm for Hannah, but at her request took it off her hands, and, May 4, 1871, the commissioners who sold it deeded it to the defendant. Mrs. Moxley's share was not paid to her, but, May 4, 1871, the defendant gave her his note of that date for $547.48, payable to her or bearer in two years from date, with interest annually. The only consideration for this note was her supposed interest in the net proceeds of the sale of the farm. Upon evidence not objected to, the master has found that, in this transaction, the defendant did not intend to waive his marital rights in his wife's real estate This is equivalent to finding that he did not waive them; for, in a transaction of this nature, there could be no waiver of such rights without an intention to waive them.

In her lifetime, Mrs. Moxley gave this note to the oratrix, without the knowledge of the defendant, and intending that the gift should be without his knowledge. At the time of the gift, Mrs. Moxley had no property except what might be owing her from the defendant on account of the sale of the farm. In the month following the decease of Mrs. Moxley, the oratrix called upon him for payment or security upon the note, and he refused to pay anything thereon. When this case was before this court, upon the demurrer to the oratrix's bill, it was held that her rights rest wholly upon the equitable rights of the wife, as she paid nothing for the note, and there has been no new promise; that the note itself is not enforceable, but is evidence of an equitable claim, enforceable by the wife, in her lifetime, in a court of equity only; and that, by the gift and the delivery of it to the oratrix, this equitable claim was transferred to her, and is enforceable by her in a court of equity only. Hackett v. Moxley, 65 Vt. 71, 25 Atl. 808. Hence the case is to be decided as though it were between the defendant and his wife in her lifetime, or between him and her legal...