Miller v. Peck et al.

• Decision Date: 30 April 1881
• Citation: 18 W.Va. 75
• Court: West Virginia Supreme Court
• Parties: Miller v. Peck et al.

18 W.Va. 75

Miller

v.Peck et al.

Supreme Court of Appeals of West Virginia.

Decided April 30, 1881.

1. A married woman having personal property, which she is allowed to hold by statute as her separate property, may barter and trade with reference thereto through, her husband as her agent, and will be entitled to the increase thereof, though living with her husband.

2. Such a married woman may in her own name proceed under the statute of interpleader to assert her right to such property.

3. Although her husband may have given his own labor in such barter and trade, and may have used the labor of his horse therein, in the absence of the fraud of the wife, this does not change the character of the property; and the property is not liable for the debts of the husband.

Writ of error to a judgment of the circuit" court of the county of Wetzel, rendered on the 14th day of October, 1878, in an action in said court then pending, wherein Hannah Miller was plaintiff and Andrew Peck, D. B. Miller and J. W. Kyser were defendants, allowed upon the petition of said Miller.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.

Moore, President, furnishes the following statement of the case:

On the 9th day of October, 1878, Hannah Miller filed in the circuit court of Wetzel county a petition under chapter 107 of Code of 1868, whereby she claimed one bay horse and about forty or fifty cords of white oak oil barrel heading wood as her separate property, which had previously been levied on as the property of her husband, D. B. Miller, with whom she was living, by virtue of a certain writ of fieri facias, sued out upon a judgment rendered by the county court in favor of Andrew Peck against said D. B. Miller and J. W. Kyser. By consent of all parties a jury was waived, and the matters arising under the petition were submitted for the decision of the court in lieu of a jury. On the 14th day of October, 1878, the court decided, that the bay horse was the separate property of said Hannah Miller, and not liable for the debts of her husband, and ordered it to be "released from the levy in the petition set up, and that she have and hold said bay horse;" and "that the white oak oil barrel heading wood described in the petition is liable for the payment of the debt of said D. B. Miller, levied thereon, as set forth in the petition, and that said petitioner, Hannah Miller, is not entitled to have and to hold the same as her separate property;" and ordered " that she release the same, and that trie same be subjected under the levy described in the petition to the payment of the execution levied thereon," and that she recover costs about her petition, &c., expended.

Whereupon petitioner objected to the said judgment, and moved the court to set aside the same as contrary to the law and the evidence, which motion the court overruled; the pe- titioner excepted thereto, and took her bill of exceptions.

It appears from the bill of exceptions, that the petitioner testified, that she was the wife of said D. B. Miller, having married him several years before and prior to the transactions stated thereafter in the bill of exceptions; and during all that time she and her husband lived together as man and wife in said Wetzel county; that during the spring of 1878 she received from her father, who resided in the State of Pennsylvania, his check for $118.00, which was sent to her in said Wetzel county by her father, and given by her to her husband to get it cashed; that prior to receiving a check for $118.00, she received in like manner from her father $250.00. This money she gave to her husband, D. B. Miller, and told him to take the money and invest it and do the best he could for her with it; that her husband invested "considerable of the money in logs." The residue of what she received from her father was by her husband invested in logs and standing timber growing upon lands some five miles from the mouth of Fishing creek, in Wetzel county; that said logs were scattered along said creek, some five miles from its mouth, in said county; that her husband ran said logs down said creek to its mouth, and procured the same to be sawed upon shares at the saw mill of S. J. Robinson, and sold so much of said lumber, as was left after paying for sawing, to Oxnard & Hall, who paid her husband therefor, and that he turned said money over to her, and that she afterwards handed back to her husband the proceeds of said logs, and directed him to buy a horse with the money; that afterwards, August 27, 1878, said husband with part of said money, purchased of Irene Obers the horse in controversy, for which he paid $40.00, out of said money, and took Obers's receipt therefor in her own name; that the residue of the proceeds of said logs was also invested in growing timber, in said county, which grew a short distance from said creek and some five miles from its mouth. This timber was purchased in the wife's name from Jacob Witchey, at the price of $91.50, there being sixty-one trees at $1.50 a tree, and as appears by Witchey's receipt therefor, the sum of $81.00 was paid by Miller for his wife to Witchey, and that the residue of said money, for said timber, was afterwards paid by said husband to said Witchey; that the said husband employed hands by his wife's orders, and felled a large portion of the said growing timber, and with that and his own labor, he working all the time, manufactured said trees into oil barrel heading wood, and then hauled it some four miles to near the mouth of said creek, and piled the same on the bank thereof; and that is the same oil barrel heading wood, which was levied on as the husband's property, as in the petition mentioned. She further testified, that she made her husband her agent for the transaction of said business, and that he was her agent in all the foregoing transactions, but there was no written contract or memorandum touching such appointment or agency. It was further proven, that about all this business the said husband contributed his time and his labor; that he managed and conducted the business and assisted with his labor in the telling of said trees, and manufactured them into said oil barrel heading wood, and that he assisted in the hauling thereof, and that the same was hauled by three teams, one of which was made up by the horse in controversy, and the other horse was furnished by her husband; that the husband received no compensation, and was to have no compensation for his management of said business, or for his labor about the same, or for the horse furnished by him; that there was from forty to fifty cords of said oil barrel heading wood so hauled and on the bank of the creek, and worth, where it lay, from $6.50 to $ 7.00 per cord. Jacob Witchey corroborated the testimony of the wife as to the transaction with him, and states that the whole of "the said $91.50, had been paid to D. B. Miller in the name of Hannah Miller." The writ oiji.fa. with the returns thereon, the indemnifying bond and suspending bond were also given in evidence.

The foregoing being all the facts proven, the court overruled the objections of the petitioner to the judgment against her, and the motion to set the same aside, to which ruling the petitioner, Hannah Miller, excepted, and obtained the writ of error and supersedeas, which brings the case before this Court.

M. R. Grouse and T. P. Jacobs for plaintiff in error, cited the following authorities: 2 Leigh 183; Code ch. 66, §§ 1, 2, 3; 13W.Va. 572; 17 Gratt. 503; 55 Me. 189; 43 Ala. 193; 13 Minn. 52; 1 Tuck. Com. bk. 1. p. 112; 23 N. Y. 505; 40 Conn. 120; Wells Sep. Prop. Mar. Women, p. 507, § 559; 11 Mod. 150; 25 Mich. 200; Story Partn.§§ 11, 12; 2 Story Eq. §§ 1385-1387; Roper Hus. & Wife ch. 18, § 4; 33 N. Y. 520; 34 N. Y. 297; 44 N. Y. 348; 44 Barb. 381; 4 Rob. 136; 54 Ga. 266; 75 Ⅲ. 451; 27 N. Y. 277; 29 Pa. 46; 11 Mich. 492; 49 Ind, 394; 33 Vt. 457.

E. C. Snodgrass & Scm, for defendants in error cited the following authorities: Code ch. 66, § 13; 12 W. Va. 350; 14 W. Va. 338; 2 Story Eq. §§ 1381-1383; 1 Min. Inst. 295, 317, 318; 1 Tuck. Com. bk. 1, pp. 112, 113, 115, 116; Roper Hus. & Wife 140-172; Story Eq. §§ 1372, 1386, 1387.

Moore, President, announced the opinion of the Court:

It is insisted by the plaintiff in error, Hannah Miller, that the court erred in giving judgment against her for the white oak barrel heading wood, and deciding that the same was liable to the payment of the judgment against her husband and J. W. Kyser in favor of Andrew Peck.

The consideration of the case as presented to us by the record and argument necessarily involves the questions of husband's agency in the business affairs of his wife relative to her separate property, and to what extent he can devote his labor and time to her business affairs, and perhaps also to what extent he may use his own property in her separate business as against creditors. These questions have been considered by many courts, and there is a diversity of opinions and conclusions thereon, as is well pointed out by Mr. Wells in his valuable treatise on "Separate Property of Married Women." It is not my purpose or duty to trace the history of the law from its beginning to the present, touching the rights of married women as to their separate property, and to what extent creditors of the husband may be affected thereby; but to grasp the question presented by this case, it will be necessary to consider some of the many cases in reference thereto and bearing thereon, and to enable me to be as brief as possible, I will first quote in extenso the epitome in review of the leading authorities made by Judge Buskirk, in the case of Cooper et. al. v. Ham et. al., 49 Ind. 393. He begins by saying:

"We make an extended quotation from the recent work of Bump on Fraudulent Conveyances, p. 269. He says:

" 'Creditors have no power to compel a debtor to labor, and earn the means to pay their demands. He...