Keller v. Klopfer

• Decision Date: 01 February 1876
• Citation: 3 Colo. 132
• Parties: KELLER, Administrator, v. KLOPFER.
• Court: Colorado Supreme Court

3 Colo. 132

KELLER, Administrator, v. KLOPFER.

Supreme Court of Colorado

February, 1876

Messrs BROWNE & PUTNAM, for plaintiff in error.

Mr. E L. SMITH, for defendant in error.

BRAZEE J.

This cause was commenced before a justice of the peace by the plaintiff's intestate, as landlord, against the defendant as tenant, holding over after the expiration of his time without leave, under s 5, ch. 35, R. S., to recover possession of the premises, alleged to have been demised.

The lease set up in the complaint is the lease of Barbara Keller the plaintiff's wife and intestate, to the defendant in 1869. The plaintiff at bar, we presume, has been substituted by the proper order, in the place of his deceased wife, although the record does not show any suggestion of Barbara's death, nor any order substituting her husband and administrator in her stead as party plaintiff, and no point is made by counsel upon this informality in the proceedings. The answer denies the lease averred in the complaint, and denies possession under it. Evidence on the part of the plaintiff tended to show an entry by defendant under a verbal lease, and the evidence on behalf of the defendants tends to show an entry under a verbal contract of sale by Keller, or Keller's wife, to Klopfer, or Klopfer's wife.

The first point made by the learned counsel of the plaintiff in error is, that the court below erroneously charged the jury, 'that if the defendant went into the possession of the premises in question, under an agreement for sale thereof by Keller, or Keller's wife, to Klopfer, or Klopfer's wife, then, whether the agreement of sale was in writing or not, the plaintiff cannot recover.' The ground of objection urged to this instruction is, because the property belonged to Keller's wife, and, therefore, he could not make a contract for its sale that would bind her, and that Klopfer's wife was not involved in the issue.

Assuming that Keller could not make a valid contract of sale, yet if he made an invalid sale, and defendant entered under it, the entry manifestly would not be an entry under a lease; whether the sale was to Klopfer, or to Klopfer's wife, the result would be the same. The charge of the court in this respect was entirely proper.

The court also instructed the jury, 'that if the alleged leasing by Keller's wife, to defendant, was verbal, and through the medium of her husband, acting as her agent, then, even though Keller was authorized to make such lease, or Mrs. Keller afterward ratified it, the relation of landlord and tenant was not created thereby, and the plaintiff cannot recover.'

This instruction is assigned for error. It is to be borne in mind that there was no evidence given tending to show that the husband had been authorized, if at all, otherwise than verbally, to make the verbal lease. It is claimed by the learned counsel for the plaintiff, that a married woman at common law could lease her lands with the concurrence of her husband; no authority is cited for this proposition, excepting section 101, Taylor's Landlord and Tenant, but that section lays down the doctrine, that the husband at common law had the right to take possession, lease and receive the rents and profits of his wife's lands during the life of the wife, and if a living child be borne of the marriage, during his life. This right the husband has as tenant by the courtesy, but it is taken away by chapter 60, R. S. (with certain exceptions not necessary to mention), by which the rents, issues and profits of her lands are made her sole and separate property, not subject to the disposal of her husband, unless it may be in respect to such rights acquired by marriage in Colorado before the passage of the act.

That act, while it expressly authorizes a married woman to contract respecting her personal property and separate business, is...