Phipps v. Markin

Decision Date14 February 1921
Docket NumberNo. 2317.,2317.
Citation227 S.W. 870
PartiesPHIPPS v. MARKIN et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Ethelyn T. Phipps against John Markin and another. Judgment for defendants, and plaintiff appeals. Affirmed.

J. E. Duncan, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondents.

FARRINGTON, J.

The appellant, who was plaintiff below in a suit in replevin, appeals from a judgment based on a verdict found against her by the trial court. The only error alleged is the giving of an instruction asked by the defendants. This case is here on second appeal, the first appeal being reported in 208 S. W. 106, where the facts surrounding this cause of action are stated, and to which we refer in the reading of this opinion.

The view we take of the case here is that plaintiff's own evidence bars her from a recovery, and, that being the case, it becomes unnecessary to consider the assigned error in the defendants' instruction. The grounds upon which we base such an opinion are as follows:

It is conceded that plaintiff and her husband, Dr. Phipps, were residents of Indiana about eight years before the transactions occurred upon which this suit is based. The case, most favorably stated to plaintiff, is that while living in Indiana as husband and wife her father gave her two Jersey heifers, which were turned over to her husband together with his herd, and he had complete control and possession of the cows; that the two cows multiplied, and that the increase was handled by her husband together with his live stock and finally sold at a sale, where the live stock from the cows given her as well as the live stock belonging to the doctor were sold. All of the money received from the sale of the entire stock was placed in a bank in the doctor's name, and the plaintiff thinks that the amount derived from the sale of the cattle produced from the gift from her father amounted to about $700, and she also is not certain, but thinks, that from needlework and hand painting which she did an additional sum of probably $300 was turned over to the doctor, and that he had, as she could best remember, about $1,000 of her money, derived as aforesaid from the cattle and from her handiwork. This property and money was all reduced to the absolute control and possession of her husband in the state of Indiana before they moved to Missouri. They then moved to Pemiscot county, Mo., and after living there awhile the doctor purchased a tract of land, paying down as purchase money $1,000, and the balance of the purchase price was paid out of timber which was cut off the land; the full purchase price being about $2,500. The title to this land remained in the doctor's name, he handling it and managing it as his own for some time. During this time he contracted certain debts, which were placed in judgments against him. The doctor and his wife then made a deed to one Taylor for this land, and Taylor in turn deeded it back to the plaintiff in this case. While it was in her name she, through her husband, who, she says, managed all of her affairs, got into a trade with a Mrs. Duncan, wife of an attorney of Pemiscot county, Mo., in which trade the doctor represented his wife and Duncan represented his wife. The negotiation resulted in Mrs. Duncan becoming the purchaser of the land hereinbefore mentioned, and the plaintiff, Mrs. Phipps, as a part payment acquired an automobile, which automobile is the subject of this replevin suit. For some reason not disclosed, the trade between Mrs. Duncan and Mrs. Phipps, carried on entirely by Dr. Phipps and Mr. Duncan, fell through and was abandoned by all parties, with the result that Mrs. Phipps was to have the automobile as a forfeiture for the trade falling through.

A man who cut the timber off of this laud, and probably some other land standing in the name of Dr. Phipps, brought suit against, him; this wood-chopping creditor's debt being made prior to the time that Dr. Phipps and Mrs. Phipps deeded the land to Taylor. He recovered a judgment against Dr. Phipps, which resulted in a sale under execution of the automobile described, and these defendants were the purchasers at the sheriff's sale of this automobile. After they had taken possession of it the plaintiff brought this suit and took the property under bond.

The theory upon which plaintiff claims this property is that Dr. Phipps had $1,000 of her money which had never been legally reduced to her husband's possession, as required under section 8309, R. S. of 1909, that is, she had never given her assent in writing; and that when this money was used in the purchase of the land the husband was merely it as trustee for her, and that the deeds which were made to place the title in the plaintiff were made to merely carry out the purpose of the trust and vesting the title in the plaintiff, who was the real owner thereof. In support of this the appellant cites Gilliland v. Gilliland, 96 Mo. loc. cit. 523, 10 S. W. 139; Reed v. Sperry, 193 Mo. loc. cit. 173, 91 S. W. 62; Hurt v. Cook, 151 Mo. loc. cit. 427, 52 S. W. 396; De Berry v. Wheeler, 128 Mo. 84, 30 S. W. 338, 49 Am. St. Rep. 538; Bright v. Miller, 95 Mo. App. loc. cit. 275, 276, 68 S. W. 1051; First National Bank of Mexico v. Ragsdale, 171 Mo. loc. cit. 185, 71 S. W. 178; Southern Bank of Fulton v. Nichols, 235 Mo. loc. cit. 412, 138 S. W. 881; McClain v. Abshire, 72 Mo. App. 390.

[1] We quite agree with the appellant that had these transactions which we have related all transpired in the state of Missouri, then plaintiff's husband nor his creditors would be permitted to reduce his wife's personal property to his own use and ownership in the face of the section of the statute cited and referred to. But such is not a fact in this case.

[2] Indiana was a part of the Northwest Territory, in which...

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8 cases
  • Stephens v. Fowlkes, 33687.
    • United States
    • Missouri Supreme Court
    • March 10, 1936
    ...was a claim of ownership. Where the wife's money pays for land, the law regards such land as her individual property. Phipps v. Markin, 227 S.W. 870; Manning v. Kansas & T. Coal Co., 181 Mo. 359, 81 S.W. 140. Nor is color of title necessary to acquire title by adverse possession of the land......
  • Hax v. O'Donnell
    • United States
    • Missouri Court of Appeals
    • June 7, 1938
    ... ... assent. [ Meyer v. McCabe, 73 Mo. 236; Benne v ... Schnecko, 100 Mo. 250, 13 S.W. 82; Phipps v. Martin ... (Mo. App.), 227 S.W. 870.] ...          It has ... been held, however, that we cannot presume that the common ... law was ... ...
  • Hax v. O'Donnell
    • United States
    • Missouri Court of Appeals
    • June 7, 1938
    ...of any question of the character of her assent. Meyer v. McCabe, 73 Mo. 236; Benne v. Schnecko, 100 Mo. 250, 13 S.W. 82; Phipps v. Markin, Mo. App., 227 S.W. 870. It has been held, however, that we cannot presume that the common law was in force in Nebraska so as to have determined the effe......
  • Farmer's Sav. Bank of Williamsburg v. Pugh
    • United States
    • Iowa Supreme Court
    • October 25, 1927
    ... ... 804; Grafeman Dairy Co. v ... Northwestern Bank, 290 Mo. 311 (235 S.W. 435); Wells ... v. Wells (Mo. App.), 288 S.W. 950; Phipps v ... Markin (Mo. App.), 227 S.W. 870. In this connection, ... Wells v. Wells, supra, will be found both ... interesting and instructive ... ...
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