Karlson v. Hanson & Karlson Sawmill Company

• Decision Date: 07 December 1904
• Citation: 10 Idaho 361,78 P. 1080
• Parties: KARLSON v. HANSON & KARLSON SAWMILL COMPANY
• Court: Idaho Supreme Court

78 P. 1080

10 Idaho 361

KARLSON v. HANSON & KARLSON SAWMILL COMPANY

Supreme Court of Idaho

December 7, 1904

WIFE'S SEPARATE PROPERTY-SALE OF SEPARATE PROPERTY-RECOVERY OF PURCHASE PRICE.

1. Where the wife sells her separate property without joining her husband in an instrument in writing conveying the same as provided by section 2498, Revised Statutes, and the purchaser receives, uses and consumes the property and is thereafter sued for the purchase price, he is estopped from interposing the defense that the contract of sale was not entered into in the manner pointed out by the statute.

2. Section 2498, Revised Statutes, was enacted primarily for the protection of the wife against fraud and duress, and was not intended as a shield for the defense of those who would cheat and swindle her.

(Syllabus by the court.)

APPEAL from the District Court, Latah County. Honorable Edgar C Steele, Judge.

Action on contract to recover the purchase price for a quantity of sawlogs. From a judgment of nonsuit and an order denying a motion for a new trial, plaintiff appeals. Reversed.

Motion for nonsuit overruled. Judgment and order reversed and case remanded, with direction. Costs awarded to appellant.

Stewart S. Denning, for Appellant, cites no authorities upon the question decided by the court.

Orland & Smith, for Respondents.

Section 2498, Revised Statutes of 1887, provides that: "The husband has the management and control of the separate property of the wife during the continuance of the marriage but no sale or other alienation of any part of such property can be made, nor any lien or encumbrance created thereon unless an instrument in writing signed by the husband and wife, and acknowledged by her upon an examination, separate and apart from the husband, as upon a conveyance of real estate." By this section the husband has the management and control of the wife's separate property, by force of the law of this state, during the continuance of the marriage relation, but without the power of alienation. This whole section is mandatory, fixing the status of the separate property of a married woman. It not only limits the husband's right to sell or encumber it, but provides the only method by which the separate property of a married woman may be sold and conveyed. The wife has not the power or right to sell, any more than has the husband. The legal title is in the wife; the possession, management and control is in the husband; it therefore takes the concurrent act of both to alienate or encumber, and that on the part of the husband and wife, acting together, as provided by this section 2498, by an instrument in writing, signed by both husband and wife, and acknowledged by the wife, as upon a sale of real estate. (Smith v. Greer, 31 Cal. 478; Dow v. Gould & Curry S. M. Co., 31 Cal. 631.) Under such statutes a transfer by the wife, without the husband joining in the instrument, is universally held absolutely void. Mere consent is not sufficient; actual joinder in the instrument must be had. (Gregg v. Owens, 37 Minn. 61. 33 N.W. 216; Melley v. Casey, 99 Mass. 241; Meagher v. Thompson, 49 Cal. 190; Selover v. American Russian Commercial Co., 7 Cal. 274.) In Maclav v. Love, 25 Cal. 374, 85 Am. Dec. 151, Justice Sawyer used the following language: "It was repeatedly held by our predecessors that no title to the separate property of the wife, either real or personal, could be conveyed, except by an instrument in writing executed and acknowledged by her in the mode prescribed by this act." In this case, while the statute requires the alienation to be in writing, signed and acknowledged, the appellant seeks to recover upon an express contract, which violates the letter of the law and is prohibited by it.

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.

-- The plaintiff, Charlotte Karlson, commenced this action against the defendants as a copartnership engaged in the lumbering business, and sought to recover upon two separate causes of action. In the first cause of action she alleges that prior to the commencement of the action she sold and delivered to the defendants ninety-six thousand seven hundred and ninety-two feet of sawlogs, for which they promised and agreed to pay her the sum of $ 3 per thousand, and that after receiving the logs they neglected and refused to pay the purchase price. In the second cause of action she alleges that she sold and delivered to the defendants one hundred and twenty-one thousand and seventy-eight feet of sawlogs, for which they promised and agreed to pay the sum of $ 3 per thousand, and that, after receiving the logs, they neglected and refused to pay. She prayed for judgment for the total sum of $ 653.43, together with interest from the date of delivery. To this complaint the defendants answered specifically denying all the material allegations thereof. The case went to trial before the court with a jury, and the plaintiff proved by her own testimony and that of other witnesses that at the time of the sale of the lumber for which she was suing she was the owner of a tract of timber land which, under the statute (Rev. Stats., sec. 2496), was her separate property, and that the defendants contracted with her to purchase the logs, for which they agreed to pay $ 3 per thousand as alleged in the complaint. She also proved that the defendants received the logs, sawed them up and sold and disposed of the lumber. It was shown that the defendants had neglected and refused to make any payment on account of this transaction. After the plaintiff had...