Warr v. Honeck
Decision Date | 01 April 1892 |
Court | Utah Supreme Court |
Parties | JOSEPH WARR, APPELLANT, v. JULIA HONECK, RESPONDENT |
APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts except the following:
The pleadings are stated in the opinion, as is also the general effect of the evidence. The court instructed the jury as follows upon the point of wife's adverse possession to the husband: The court gave no instruction upon the question of an estoppel made in the complaint, and did not submit that question to the jury.
Affirmed.
Messrs Hoge and Burmester, for the appellant.
Appellant's brief cited as to proposition that wife cannot hold adversely to husband while the marital relation continues. 1 American and English Cyclopedia of Law, 250. Bank v. Guerra, 61 Cal. 109; Mandlin v. Cox, 67 Cal. 387, 7 P. 804; Veal v. Robinson, 70 Ga. 809; Bell v. Bell's Adm'r, 37 Ala. 536; Hendricks v. Rasson, 53 Mich. 575, 19 N.W. 192; Snyder v. People, 26 Mich. 106; Berry v. Hall (Ky.), 11 S.W. 474.
Messrs. Zane and Putnam, for the respondent.
The respondent's brief admitted the general rule of commonlaw, but argued that a feme sole was an exception to the general rule. Respondent was a feme sole. Love v. Moynehan, 16 Ill. 277, 63 Am. Dec. 306 and note; Wright v. Hays, 10 Tex. 130, 60 Am. Dec. 200; Arthur v. Broadnax, 3 Ala. 577, 37 Am. Dec. 707 and note; Rhea v. Rhenner, 1 Pet. 105; Phelps v. Walther, 78 Mo. 320, 47 Am. Rep. 112; Reis v. Lawrence, 63 Cal. 129, 49 Am. Rep. 83, and note Common law rule has been relaxed. Clark v. Gilbert, 39 Conn. 94; Gafford v. Strauss, 7 Law. Rep. 568. Void decree was color of title. Hall v. Law, 102 U.S. 461; Wilson v. Atkinson, 77 Cal. 485; Packard v. Moss, 68 Cal. 123, Utah statutes give fullest rights to married women. Sections 2528, 2530, 2640, 2649, 3172, 3140, 2 Comp. Laws, 1888; and Cereghmo v. Wagener, 4 Utah, 514; Barton v. Barton, 32 Md. 214; Power v. Lester, 23 N.Y. 527; Flenner v. Flenner, 29 Ind. 564. And on the question at issue the brief cited, Veal v. Robinson, 70 Ga. 809; Hartman v. Nettles, 64 Miss. 495; also Avent v. Arrington, 105 N.C. 377; McQueen v. Fletcher, 77 Ga. 444. Cases cited by appellant were distinguished. Also on question as to the alleged error in permitting question to be asked whether or not it was well known in the neighborhood that respondent claimed the land, was cited Wood v. Trans. Co. (Ala.), 3 So. 475.
This is an action of ejectment brought by appellant against respondent to recover the possession of the W. 1/2 of S.W 1/4 of section 21, township 2 S., of range 6 E. of the Salt Lake Meridian, on May 22, 1890. Complaint alleges ownership and right of possession and ouster. Defendant answers, specific denial and statute of limitations; that she has had adverse possession of the premises since the 1st day of December, 1879; that formerly Carl Frederick Honeck was the owner in fee of said premises, together with the E. 1/2 of said quarter section, and she was his wife; that they had separated, and said quarter section was then partitioned between them, said Carl Honeck taking the east half and this defendant the west half; and that she has lived peaceably upon the same since that time, and made valuable improvements upon it, and raised her family upon it, and since that time she and her said husband have lived separate and apart, and he has done nothing for the support of her and her children by him. And with the full knowledge of all these facts, plaintiff caused said Carl Frederick Honeck to deed him said west half of said quarter section in fraud of all her rights. Trial by jury and verdict for defendant. Motion for new trial, and motion overruled. This appeal is from both the judgment and the order overruling motion for new trial. The evidence as developed by the record is substantially as follows: Carl Frederick Honeck was the husband of the defendant, and acquired the title to the S.W. 1/4 of section 21, township 2 S., of range 6 E., and lived with the defendant on the W. 1/2 of said quarter section. They separated; the wife procured a decree, from the probate court, of divorce, giving her the west half of said quarter, and that left Carl Honeck the east half; this was in 1879. This decree is admitted to be void. But they continued to live apart until this suit was brought, and both parties seemed to acquiesce in the decree. The defendant continued to live upon the land, fenced and farmed some of it, and herded the neighbors' cattle off of the other part, and her own, upon it. In 1887, Carl Frederick Honeck deeded the said west half to the plaintiff, when he was living apart from his wife in Salt Lake City. The plaintiff all these years lived about three-quarters of a mile from the defendant,...
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