Lakenan v. McIlhaney
| Decision Date | 13 April 1885 |
| Parties | J. G. LAKENAN AND A. C. BARNES, under firm name of LAKENAN & BARNES, Appellants, v. JOHN M. MCILHANEY, L. M. MCILHANEY AND MEXICO SAVINGS BANK, Respondents. |
| Court | Kansas Court of Appeals |
APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.
Affirmed.
The facts sufficiently appear in the opinion of the court.
GEORGE ROBERTSON, for the appellants.
I. The husband was, in this case, the agent of the wife to put the land in the hands of an agent for sale. The evidence does not show that she directed him to put the land in hands of agent for sale; it shows conclusively that she assented to the sale, knowing that he had done so, ratifying his act and making it her act.
II. The money in the bank is her sole and separate estate and may be charged with her debts in equity.--Sects. 3295 and 3296, Rev Stat., 1879. The conversion of the wife's land by sale into money is an acquisition of personal property by her means; hence the money becomes the sole and separate property of the wife.-- Rogers v. Bank of Pike Co., 69 Mo 560.
III. The warranty deed to Mrs. McIlhaney should have been admitted in evidence, for it was the first step in the proof that this money in the bank was an acquisition of personal property by the wife, therefore liable for her debts. A married woman may create a charge upon her sole and separate property, whether real or personal, and when she contracts she does so and binds it in equity.
IV. The deed to Mrs. McIlhaney vests in her an estate in fee simple and is called the wife's statutory land.--Bish., Law of Married Women, vol. 2, sect. 282. This estate is identical with the wife's lands at common law (in equity). In this deed there is no trustee, but in such case, by operation of law, the husband becomes trustee.--Bishop on Law of Married Women, vol. 1, sects. 799-801. These married women's statutes are liberally construed.
W. O. FORRIST, for the respondents.
I. A motion for new trial was filed, but the grounds of it nowhere appear. This court will not investigate errors.-- Anthony v. R. R. Co., 76 Mo. 19; Alexander v. Relfe, 74 Mo. 52; Sweet v. Maupin, 65 Mo. 68.
II. The excluded deed did not tend to sustain the issue tendered: that the female respondent owned the land named in it as her separate estate; but its legal effect was that she had no separate estate in the lands described. If the deed had been admitted it could have no effect to sustain plaintiff's claim.-- Paul v. Leavitt, 53 Mo. 596; Olney v. Eaton, 66 Mo. 566; Haskinson v. Adkins, 77 Mo. 538.
III. There is no foundation for the claim of ratification; the appellants do not pretend that Mrs. McIlhaney made any contract with them, or that she authorized any to be made for her account. But there is no such claim in the petition. The averment there is that she made the contract. The claim of ratification is inconsistent and cannot be allowed. She never heard of the contract until she was sued upon it, when she repudiated it. Can she be bound by the doctrine of ratification by contracts made by her husband, as touching her own property, except such ratification is shown by some writing of hers?-- Brokerage Co. v. Bagnell, 76 Mo. 554; Capital Bank v. Armstrong, 62 Mo. 60; Eystra v. Capelle, 61 Mo. 580; Rodgers v. Bank Pike Co., 67 Mo. 563; McLaren v. Hall, 26 Iowa 305; Rowell v. Kline, 44 Ind. 291; Bish., Mar. Wom., 2d vol., sect. 296; vol. 1, Rev. Stat., p. --, sect. 14. By these authorities it is clear that neither the female respondent nor her property is bound by the contract sued on.
In this case the 2d amended petition, on which the case was tried, avers substantially: That the plaintiffs at the beginning of the suit were and for a long time prior thereto had been partners in the real estate business, under the firm name of Lakenan & Barnes; that the defendants, McIlhaneys, were husband and wife, and that John M. McIlhaney was joined as a party to conform to law. That at the times therein mentioned, the female McIlhaney was the owner in fee simple of certain described real estate, being her sole and separate estate. That said female defendant on a certain day placed said real estate in plaintiff's hands for sale, the plaintiffs to find a purchaser for said real estate, to prepare the deed for said defendant and her husband to sign, to collect the purchase money, and if a sale should be made for $800, that plaintiffs should deduct the sum of $50 as their compensation from said purchase price; the female defendant intending thereby to charge her separate estate with the payment of said sum of $50. That plaintiffs found a purchaser, named Green, for said real estate at and for the said sum of $800; that said female defendant accepted said purchaser, and in order to cheat and defraud plaintiffs of their part of the purchase money, to wit, $50, after said sale was made, procured another than plaintiffs to draft the deed of conveyance of said real estate, and collected the whole of the purchase money from said Green. That said defendant has wholly failed to pay plaintiffs the said sum of $50. That said defendant deposited in the Mexico Savings Bank $225, a part of the said purchase money, which said sum was still in said bank. That said defendant had no other property which could be subjected to the payment of plaintiff's debt of $50, and that if said defendant should be permitted to draw from said bank the said sum of $225, the plaintiffs would be utterly remediless and without means to collect said debt, etc., etc.
The prayer of the petition was as follows:
" Wherefore plaintiffs pray that their lien on said $225 may be enforced and that they may have judgment for said sum of $50 and that said $225 may be subjected to the payment of such judgment, and plaintiffs further pray that defendant, L. M. McIlhaney, her said husband, agent, or attorneys, or assigns, be restrained from in any way drawing said sum of $225 from said bank, and that said bank, its agents and attorneys be restrained from paying out said last mentioned sum or any part thereof till plaintiffs may subject the same to the payment of their said debt, or until the matter aforesaid be adjusted according to the equitable powers of this court, and plaintiffs pray for all other and proper orders and relief."
The defendants McIlhaneys filed separate answers, which were substantially general denials, except that each answer admitted that said McIlhaneys were husband and wife.
The plaintiffs offered in...
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