McFerran v. Kinney

• Decision Date: 14 June 1886
• Citation: 22 Mo.App. 554
• Parties: JAMES H. B. MCFERRAN ET AL., Respondents, v. PATRICK S. KINNEY, Defendant; ELIZABETH KINNEY, Interpleader, Appellant.
• Court: Kansas Court of Appeals

22 Mo.App. 554

JAMES H. B. MCFERRAN ET AL., Respondents, v. PATRICK S. KINNEY, Defendant; ELIZABETH KINNEY, Interpleader, Appellant.

Court of Appeals of Missouri, Kansas City.

June 14, 1886

APPEAL from Caldwell Circuit Court, HON. E. J. BROADDUS, Special Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

CROSBY JOHNSON, for the appellant.

I. Husband may make a reasonable provision for his wife out of his estate. Wood v. Bradley, 76 Mo. 23; Moore v Page, 111 U.S. 117.

II. If the wife is allowed to manage and deal with the property as her own, and the husband assents to and recognizes it as hers, it becomes her separate estate. Welch v Welch, 63 Mo. 57; Coughlan v. Ryan, 43 Mo. 99; McCoy v. Hyatt, 80 Mo. 135; Holthaus v Hornbostle, 60 Mo. 430; State v. Chatham National Bank, 10 Mo.App. 482. If he elects to receive property coming to her by inheritance, etc., as trustee for her, it becomes separate estate. Machen v. Machen, 38 Ala. 36; Jaycox v. Caldwell, 51 N.Y. 395; Bent v. Bent, 44 Vt. 555; Deck v. Smith, 12 Neb. 389; Bryant v. Bryant, 3 Bush (Ky.) 155.

III. The married woman's act of 1875 applied as well to those already married as to those subsequently married. Bish. on Married Woman, sects. 35, 34; State v. Ray Co., 79 Mo. 420. That act vested in the wife the legal title of all property which she then possessed, as an equitable separate estate. 2 Bishop on Married Woman, sect. 34; Turner v. Kelly, 70 Ala. 85.

IV. Possession by the wife is prima facie evidence of her ownership. 2 Bishop on Married Woman, sect. 140; Patterson v. Kicker, 75 Ala. 406; Whiton v. Snyder, 88 N.Y. 299. A note payable to her is prima facie her note. Bodgett v. Ebbing, 24 Miss. 245; Bates v. Brookport Bank, 89 N.Y. 286; 2 Bishop on Married Woman, sect. 140. When a deed recites that the consideration came from her, it will be presumed that such was the case. Stoll v. Fulton, 1 Vroom (N. J.) 430; Morrison v. Koch, 32 Wis. 254; Kluender v. Lynch, 4 Keyes 361. Crops raised on her lands are presumptively hers. Scott v. Hudson, 86 Ind. 286; Stout v. Perry, 40 Ind. 531; Hamilton v. Booth, 55 Miss. 60.

V. None but creditors having claims in 1875 can assail interpleader's title. Burke v. Adams, 80 Mo. 504; Jones v. Clifton, 101 U.S. 225; Jenkins v. Clement, 14 Am. Dec. 678, 706. As the reply does not charge fraud, the court must assume there was none in the transfer of the property. Copeland v. Kelsoe, 57 Ala. 256.

No brief from the respondent.

PHILIPS P. J.

Respondents, plaintiffs below, sued the defendant, Patrick Kinney, by attachment, under which certain personal property, consisting of cows, horses, and a crop of hay and corn, were seized by the sheriff as the property of said defendant. Elizabeth Kinney, the wife of the defendant, interpleaded, claiming the attached property as her separate property. On a trial before a jury the issues were decided in favor of plaintiffs. The interpleader has appealed.

The issues having been tried on the law side of the court by a jury, the only questions for our consideration are as to the correctness of the declarations of law given and refused by the court.

I. The first instruction declared, in substance, that Mrs. Kinney was not the owner of the cattle, unless the jury were satisfied that the same were paid for with her separate means, acquired independently of her husband, and that it was not sufficient that she had shown that such means were merely in her hands, but she must show that they were acquired, or came to her, or originated in property acquired since March, 1875.

The evidence concerning the cattle tended to show that the cows, of which the cattle in controversy were the increase, were sold in the fall of 1875, under a chattel mortgage, in favor of one McWilliams. It does not clearly appear who was the mortgageor in this chattel mortgage.

This fact, for some reason, is not disclosed, but the inference is pretty clear that the Kinneys were the mortgageors. Be this as it may, the testimony tends to show that friends of Mrs. Kinney bought in the cattle for her, and gave their notes for the purchase money. There was evidence tending to show that she refunded the money, but it is not clear, by any means, that the money was her separate means. By the act known as " the married woman's act" (Laws of Missouri, 1875, pp. 61-2), approved March 25, 1875, it is provided that, " any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or purchase with her separate money or means * * * shall, together with the increase and profits thereof, be and reman her separate property and under her sole control, and shall not be liable or taken by any process of law for the debts of her husband," etc.

As the original cattle came to her after the passage of said act, by purchase, to give her a separate estate, without more, the purchase price must have been paid with her separate money or means. This was a question of fact, and was properly submitted to the jury in the first instruction. Objection is strongly urged against it by appellant because it, in effect, told the jury that it was not sufficient to establish the existence of such separate means that the evidence should show that the means were in interpleader's hands. Counsel's contention is, that, as the general rule of law is that the possession of personal property is prima facie evidence of ownership, a like presumption should be indulged in favor of the possession of a married woman, especially since the act of 1875.

We are of opinion that the position is not tenable. That no such presumption arose at common law is well settled. The possession of the wife at law was the possession of the husband. Walker v. Walker, 25 Mo. 376. In Sloan v. Torrey (78 Mo. 625), the court says: " The presumption of law is, it (the property) having been acquired during coverture, that it was paid for with the means of her husband."

If this rule of evidence has been in any degree modfied, it must be by some statute. Wherein has the act of 1875 affected or changed it? It does not purport to accomplish any such result.

In Seitz v. Mitchell (4 Otto 383), it is held, that in a contest between a wife and her husband's creditors, mere evidence that she purchased the property during coverture is not sufficient to give to her title; it must satisfactorily appear that the property was paid for with her own separate funds, and in the absence of such evidence, the presumption is a violent one that the husband furnished the means of payment. The court then proceeds to cite with approval many cases holding that this rule is not changed by virtue of the so-called married woman's act. This case is cited with approval by our supreme court in Weil v. Simmons (66 Mo. 620), and Sloan v. Torrey, supra. In McCoy v. Hyatt (80 Mo. 130), the rule is substantially recognized, in passing on the instructions, under the act of 1875. While the statute enlarges the rights, and throws additional safeguards around the rights of married women in respect of certain personal property, the same proof as heretofore is just as essential to establish the fact of the purchase having been made with her separate means.

II. The other instructions may be considered in mass. They, in effect, directed the jury to find against the interpleader as to the horses, and hay, and corn, in controversy.

The evidence showed that the sorrel mare in controversy was given to interpleader by her father as far back as 1868. As to the other horse, interpleader testified that she got it from her brother, who died in 1875; that she got it from him " a couple of years before his death." How she got it, whether by gift or purchase, does not appear. The evidence also showed, without contradiction, that these horses were recognized as the property of Mrs. Kinney; that she always claimed them as hers, and that her husband did not assert any claim to them, etc., but assented to her claim of ownership.

We do not see why the jury should not have been permitted to pass on the question as to the separate property interest of interpleader in the horses. The language of the act of 1875 is broad. It says, the property " which may have come to her during coverture." While we would not be understood as intimating that the legislature, by an enactment, could divest the marital interest of the husband already acquired in property through the wife, yet, where he consents thereto, and by act and word recognizes the wife's separate ownership, before the rights of any of his creditors have attached, as seems to be the case here, we hold that she may assert a separate claim to such property coming to her prior to the act of 1875. This doctrine is recognized in McCoy v. Hyatt, supra.

Claim and exercise of ownership by her, with the knowledge and acquiescence of the husband, especially where this fact is public, without fraud upon existing creditors of the husband, and during a number of years, are facts sufficient to entitle the wife to have the opinion of a jury, or a chancellor, on the issue of separate property. 2 Bishop on Married Woman, sects. 34-5; Holthaus v. Hornbostle, 60 Mo. 443; Welch v. Welch, 63 Mo. 57; Coughlan v. Ryan, 43 Mo. 99.

We, therefore, hold that there was sufficient evidence in this case to entitle the interpleader, under proper instructions, to go to the jury as to her separate ownership of the horses.

III. As to the...