McCoy v. Hyatt

• Decision Date: 31 October 1883
• Citation: 80 Mo. 130
• Parties: MCCOY et al., Appellants, v. HYATT.
• Court: Missouri Supreme Court

80 Mo. 130

MCCOY et al., Appellants,

v.HYATT.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

REVERSED.

L. T. White and John J. Cockrell for appellants.

Sparks & Campbell for respondents.

PHILIPS, C.

The petition in this case alleges in substance that on the 23rd day of March, 1878, the plaintiffs were and are yet husband and wife; that on the day aforesaid the said Virginia was the owner in her own right by gift and purchase of a certain mowing machine described, and that, on the 25th day of March, 1878, the defendant Ramsey, with the assistance of the other defendants, with force and arms, willfully, wrongfully and unlawfully seized upon and converted the same to their own use, to her damage in the sum of $100, for which judgment is prayed.

The answer admitted the coverture and then pleaded that at the time of the acts complained of, the defendant Ramsey was constable in said county; that defendant Hyatt having recovered judgment in a justice's court against the plaintiff, J. L. McCoy, husband of said Virginia, for $26.20, had execution issued thereon, which came to the hands of said Ramsey as such constable, who levied the same on the machine in question; that the said Virginia having made claim in writing to said constable of said property verified by affidavit, a jury was called to try the right of property, who found the issue thus made for the said Virginia; thereupon Hyatt, with the other defendants as sureties, gave to the constable an indemnifying bond, and he then sold the machine, Hyatt becoming the purchaser at the sum of $35, and taking the machine away. The answer then alleged property in the husband, and charged that the pretended title of the wife was a fraud upon the creditors of said husband.

The reply tendered the general issue as to the allegations of ownership and fraud made in the answer. The cause was tried before the court sitting as a jury. Verdict and judgment for defendants. The case was dismissed by plaintiffs as to the constable, Ramsey, before trial.

Plaintiffs' evidence was to the effect that L. M. McCoy, the father of J. L. McCoy and father-in-law of Virginia McCoy, bought the machine sometime in 1873 or 1874; that in 1875, finding he did not need it, he offered to let his daughter-in-law have it, in consideration of love and affection and the sum of $20, which sum she agreed to pay and did pay. The family all seem to have regarded the machine as that of Virginia after this transaction. In 1877, L. M. McCoy executed and delivered to Virginia the following bill of sale: “I, Lewis M. McCoy, of the county of Johnson, State of Missouri, have this day, for and in consideration of $20, to me in hand paid by Virginia McCoy, the receipt whereof is hereby acknowledged, as well as for the love and affection I have toward her as my daughter-in-law, sold and confirmed unto her one Buckeye mower of the junior pattern, and warrant the title thereof to be good. Witness my hand this 15th day of September, 1875.” The debt in question was created subsequent to these transactions. The evidence tended to show that at the time of the sale the machine was worth $50

Defendant offered testimony showing that at the time of the levy, the constable went to J. L. McCoy's house and asked for a list of their property, and plaintiff, Virginia McCoy, and L. M. McCoy did make out a list which set forth certain property as the property of J. L. and other property as property of Virginia McCoy, and the machine in controversy was not at the house and was not on either list. One witness swore that in 1877, and again in 1878, J. L. McCoy offered to trade the machine in controversy for a wagon, and the last time mentioned the fact that it was his wife's. Another testified that J. L. McCoy offered to trade it for a wagon in 1877. Another had worked for L. M. McCoy, father of J. L. McCoy, in 1873, 1874, 1875, and said that J. L. McCoy spoke of this machine as his, and, on cross-examination, admitted that J. L., while living with his father, claimed nearly everything he used. J. L. Roberts testified to selling the machine to J. L. McCoy in 1873, but on the credit of L. M. McCoy. The notes were shown to have the signature of J. L. McCoy first, and L. M. McCoy second on them. And the bank cashier admitted that L. M. McCoy was there when one of the notes matured and was paid. Another testified that a cultivator and some other articles were levied upon at the same time the mower was, and no claim was made on them.

The plaintiffs asked the following instructions, all of which the court refused:

1. If the court, sitting as a jury, believes from the evidence that the plaintiff, Virginia McCoy, acquired the property in controversy by gift or purchase, then the possession of the husband is the possession of the wife, unless the said property was reduced to the possession of the husband by and with the consent of the said Virginia McCoy in writing.

2. If the court, sitting as a jury, believes from the evidence that Virginia McCoy was put in possession of the mowing machine in controversy prior to the levy upon it by Constable Ramsey, and had never parted with her right thereto at the time of said levy, then the law presumes that she was the rightful owner thereof, and unless the defendants show, by a preponderance of evidence, to the satisfaction of the court, that she was not then the owner of said machine, it must find for plaintiffs and assess their damages at the value of said machine at the time of the levy thereon.

3. If the court, sitting as a jury, believes from the evidence that said Virginia McCoy acquired the property in controversy by gift or purchase, prior to the time of the levy thereon, then the finding will be for plaintiffs, unless defendants have proven to the court that she sold said property to her said husband, or that he reduced it to his possession with her consent in writing.

On behalf of the defendants the court declared the law to be as follows:

1. It devolves upon the plaintiffs to show, by a preponderance of evidence, that the mowing machine in controversy was the property of Virginia McCoy at the time the same was levied upon by Constable Ramsey.

2 Unless the court finds from the evidence that Virginia McCoy purchased said machine with her separate funds from Lewis McCoy, prior to the time the same was levied upon by the constable, the finding will be for defendants.

3. Although the court should find from the evidence that Virginia McCoy did purchase the said machine on the 15th day of September, 1875, and paid $20 for the same sometime afterward, still, unless it further appears from the evidence that said purchase was made by the said Virginia with her own separate money and means, then the finding will be for defendants.

I. A summary review of the general question of a married woman's property rights may make clearer the conclusion I have reached in this case.

1. MARRIED WOMAN'S PERSONAL PROPERTY.

Under the common law the acquisitions of the wife enured to the benefit of the husband, and became liable for his debts. As her legal existence by fiction of law was swallowed up in that of her husband, her possession was his. In the progress of law and justice the courts of equity interfered, under certain circumstances, as against the husband and his privies, for the protection of the wife, securing to her the enjoyment of property as a femme sole. It was long held that a trustee for her was essential as the depositary of the legal title. Courts of equity, however, soon held that rather than injustice should be done they would constitute the husband, where he held the possession, a trustee for the wife. Holthaus v. Hornbostle, 60 Mo. 442. And like every other principle of jurisprudence, though not changeable, yet possessing so much flexibility as to adapt itself to the growing necessities and varying circumstances of civilization and of social and domestic life it has so extended that courts of law as well as of equity recognize and adjudicate upon personalty as the absolute property of the wife under certain conditions.

2. ___: evidence.

Both as to the real and personal property no particular or set phraseology is essential, in the instrument vesting the property, to create a separate estate in a married woman. It is only necessary to this end to employ such terms of expression as indicate clearly and unequivocally the intent to vest in her the title and estate independent of the husband. And in respect to personal property the title to which may pass without deed or other instrument of writing, as by word and delivery, the separate title thereto of a femme covert can be established by acts, conduct and words, as any other fact in pais. Holthaus v. Hornbostle, supra, 443. And where the proof is clear and persuasive that the property is so placed in her, the fact of the husband's indebtedness cannot affect her proprietorship and right. As is stated by the learned judge in the...