De Votie v. McGerr

• Decision Date: 17 October 1890
• Citation: 24 P. 923,15 Colo. 467
• Parties: DE VOTE et al. v. McGERR.
• Court: Colorado Supreme Court

24 P. 923

15 Colo. 467

DE VOTE et al. v. McGERR.

Supreme Court of Colorado

October 17, 1890

Appeal from district court, Clear Creek county. On rehearing; former decision not reported.

This was an action brought by Annie McGerr, plaintiff below, to recover the value of certain live-stock, consisting of eight cows and three yearlings, which she claimed to own and possess as her own property, and which she alleges were wrongfully taken and converted by defendants to their own use. It appears that in September, 1885, two of the defendants, Bullock and strickler, obtained a judgment in the county court of Clear Creek county against Thomas McGerr husband of plaintiff, and that, by virtue of an execution to satisfy said judgment, their co-defendant, John C. De Votie sheriff of said county, levied upon and sold certain live-stock, including those claimed by plaintiff in this action. The principal defense relied on was that Thomas McGerr, and not the plaintiff, was the owner of the property in controversy, and that said property was liable to execution to satisfy the judgment obtained against him as aforesaid. The issue upon this defense was tried and submitted to the jury, who returned a verdict for the plaintiff. The defendants bring this appeal, and assign for error the refusal of the court to admit certain testimony the refusal to give certain instructions prayed by defendants, and the giving of certain other instructions prayed by plaintiff.

Syllabus by the Court

1. A wife's separate property may become subject to the debts of her husband, in case he be permitted to deal with it, and obtain credit upon it as his own with her knowledge and consent.

2. An estoppel in pais cannot be proved under the general or specific denial provided by the Code, but must be specially pleaded as new matter, in order to be available as a defense.

3. In actions for the recovery of personal property, or damages for the conversion thereof, the principle applicable to pleadings, when fraud is relied on as a defense, may be stated thus: Where the defendant's claim of title springs out of or rests upon the alleged fraud or fraudulent conduct of the plaintiff, so that but for the fraud the title of plaintiff would be good, such fraud, being the source and foundation of the defendant's claim, is essentially new matter, and must be pleaded, or it cannot be proved.

4. It is not error to refuse instructions which are not appropriate to the issue as tendered and accepted.

Morrison & Fillius, for appellant.

C. C. Post, for appellees.

ELLIOTT J.

The return of the property incontroversy for assessment by Thomas against the plaintiff's title, unless accompanied McGerr as his own was not evidence by evidence that such return was with her knowledge and consent. So, too, a mortgage of the property by the husband as his own was not evidence against the wife's title, unless supplemented by evidence of her knowledge and consent. If there be satisfactory evidence of actual knowledge the evidence of consent need not be express; but consent may, perhaps, be inferred from long-continued acquiescence, or other pertinent circumstances. The trial court did not err in rejecting the assessment, return, and mortgage, the supplementary evidence not being produced or offered. The instructions prayed and refused, as well as those given at the trial, are very voluminous, and it is unnecessary to undertake to review them in detail. The instructions given fairly submitted the question arising upon the evidence under the pleadings as to whether or not plaintiff was the actual owner of the property in controversy, and limited her recovery to such property as the proof showed belonged to her separate estate. The law, in respect to the rights of married women to own, hold, and enjoy their separate property, and to be protected therein, was fully considered in the cases of Wells v. Caywood, 3 Colo. 487, and in Coon v. Rigden, 4 Colo. 275. These cases have been several times cited and approved by this court. It is not necessary to restate the doctrine therein announced. Counsel for appellants in the court below undertook to avoid the force and effect of these decisions by the offer of evidence tending to show that the plaintiff permitted her husband, Thomas McGerr, to deal with the property in controversy as his own, and so to obtain credit upon it. They also requested the court to change the jury to the effect that, even if the property in controversy was the separate property of the wife, she could not recover damages for its conversion if she had allowed it to be used by her husband as a means of obtaining credit for the goods for the price of which it was seized and sold. This instruction was refused. Much reliance is placed upon the following paragraph from the opinion in Coon v. Rigden, supra: 'Should the wife permit the husband to deal with and sell her separate property as his own, or obtain credit upon it as his own, undoubtedly this would be a fraud against which courts would extend their protection.' Unquestionably, a married woman may, by her own voluntary conduct, forfeit protection to her separate estate. Being sui juris she is responsible for her own fraudulent acts as well as subject to the law of estoppel. Railroad Co. v. Allen, 13 Colo. 229, 22 P. 605. Some of the instructions prayed by defendants, and refused by the court, undoubtedly state correct propositions of law relating to such conduct. But the evidence tending to show that Mrs. McGerr permitted her husband to deal with the property in controversy as his own was not very strong, though probably sufficient to make it incumbent upon the court to give the instructions prayed upon that theory, if the issues in the case had been properly framed for that purpose. The foregoing quotation from Coon v. Rigden indicates that the acts of a wife which would cause her property to become liable for the debts of her husband must be such as would amount to a fraud, and thus estop her from asserting her title. 'The ground of an estoppel by conduct commonly is fraud,' says Mr. Bigelow, at page 686 of his work on that subject. It is a general rule that matters constituting fraud must be specially pleaded in order to be available as a defense. As this difficulty in the case had not been noticed by counsel in their original printed briefs, nor in the oral argument before the court upon the rehearing, we requested counsel to present additional briefs, which they have done, upon the following question: 'Were defendants below entitled to have the jury instructed upon the theory that the property in controversy had become subject to the debts of Thomas McGerr by reason of plaintiff's supposed fraudulent conduct in respect thereto, without setting forth in their answer any defense of that character?

Counsel for appellants now contend that it is unnecessary to plead specially those matters which amount to an estoppel in pais; that such matters may be given in evidence under the general issue; and that, inasmuch as there was some evidence tending to show that plaintiff permitted her husband to deal with the property as his own, the question whether such evidence was sufficient to estop plaintiff from asserting her title should have been submitted to the jury. This view is supported by respectable common-law authorities. Bigelow, Estop. 669; Canal Co. v. Hathaway, 8 Wend. 480. But whatever may be the weight of...