Wilhite v. Hamrick

• Decision Date: 05 January 1884
• Docket Number: 11,332
• Citation: 92 Ind. 594
• Parties: Wilhite et al. v. Hamrick
• Court: Indiana Supreme Court

92 Ind. 594

Wilhite et al. v. Hamrick

No. 11,332

Supreme Court of Indiana

January 5, 1884

From the Hendricks Circuit Court.

The judgment is affirmed, with costs.

L. M Campbell, for appellants.

J. V Hadley, E. G. Hogate and R. B. Blake, for appellee.

OPINION

Howk C. J.

This was a suit by the appellee, Ellen O. Hamrick, against the appellants, William Wilhite and Melvin Harkrider, to recover the possession of certain real estate, particularly described, in Hendricks county. The complaint was in the usual statutory form in such cases. The appellants jointly answered in four paragraphs. The appellee's demurrer was sustained to the first paragraph of such answer. Appellee replied specially to the fourth paragraph of answer and appellants' demurrer to this reply was overruled by the court. To this ruling the appellants excepted and refused to plead further; and thereupon the court rendered judgment in appellee's favor for the recovery of the real estate described in her complaint.

Errors are assigned by the appellants, in this court, which call in question the decisions of the circuit court (1) in sustaining the demurrer to the first paragraph of their answer, and (2) in overruling their demurrer to the reply to the fourth paragraph of their joint answer.

Before considering any of the questions arising under either of these alleged errors, it may be premised that the appellee averred in her complaint, which was filed and this suit commenced on the 23d day of April, 1883, that she was then, and had been for eighteen years then last past, a married woman and the wife of one James W. Hamrick. Perhaps, this averment is out of its place in appellee's complaint, and ought to have appeared in her reply; but counsel on both sides, below and in this court, have treated the appellee's continuous coverture for eighteen years, as properly pleaded and shown in her complaint, and we will so consider it.

In considering the alleged error of the court, in sustaining a demurrer to the first paragraph of answer, the first point made in argument by the appellants' counsel is, that the facts stated in this paragraph show that the appellee has lost, and is precluded from asserting, her alleged title to and right to the possession of the real estate in controversy, by an equitable estoppel in pais. It is to be observed that all the facts stated in such paragraph of answer, which, counsel claim, constituted such estoppel in pais, occurred or transpired prior to the 19th day of September, 1881, on which day "an act concerning husband and wife," approved April 16th, 1881, took effect and became a law. In section 2 of this act, being section 5117, R. S. 1881, it is provided that a married woman "may, in her own name, as if she were unmarried, at any time during coverture, sell, barter, exchange, and convey her personal property; and she may also, in like manner, make any contracts with reference to the same; but she shall not enter into any executory contract to sell or convey or mortgage her real estate, nor shall she convey or mortgage the same, unless her husband join in such contract, conveyance, or mortgage: Provided, however, That she shall be bound by an estoppel in pais, like any other person."

Before the taking effect of this section of the statute, it was settled law in this State that a married woman could not in any manner, during the coverture, convey or encumber her separate real estate, except by her deed or mortgage in the execution of which her husband should join. The cases are numerous, in the reported decisions of this court, wherein it was held that a married woman could not, during the coverture, estop herself by her oral speeches or conduct from asserting title to her lands, or divest herself of such title. Behler v. Weyburn, 59 Ind. 143; Hamar v. Medsker, 60 Ind. 413; American Ins. Co. v. Avery, 60 Ind. 566; Unfried v. Heberer, 63 Ind. 67; Richards v. O'Brien, 64 Ind. 418; Williams v. Wilbur, 67 Ind. 42; Suman v. Springate, 67 Ind. 115; Liberty Township, etc., Ass'n v. Watkins, 72 Ind. 459; Miller v. Albertson, 73 Ind. 343; Brandenburg v. Seigfried, 75 Ind. 568; Parks v. Barrowman, 83 Ind. 561.

Appellants' counsel concedes, as we understand his argument, that under the law of this State, as it existed prior to the taking effect of section 5117, supra, a married woman could not divest herself of the title to her lands by an estoppel in pais. But counsel contend, with much earnestness, that "the proviso of section 5117 means what it says, and that it took from the appellee entirely the disability of coverture." In other words, counsel claims that the proviso in question is retroactive in its effect and operation, in so far that the oral speeches or conduct of a married woman, prior to September 19th, 1881, when the proviso took effect, will since that date bind her as "an estoppel in pais, like any other person." We are of the opinion, however, that no such effect or operation can, or ought to, be given to such proviso. The grammatical construction of the proviso, the mood and tense of the only verb therein, show clearly the legislative intent to have been that thereafter a married woman should "be bound by an estoppel in pais, like any other person." It is a maxim of the law, that statutes must be construed prospectively, unless they plainly import a different intention on the part of the Legislature. Pritchard v. Spencer, 2 Ind. 486; Hopkins v. Jones, 22 Ind. 310; Dale v. Frisbie, 59 Ind. 530. There is nothing in the statute under consideration which can be said to plainly import an intention on the part of the Legislature that such statute should be retroactive in its effect and operation. Cooley Const. Lim. (5th ed.) p. 456.

Our conclusion is that the court did not err in sustaining appellee's demurrer to the first paragraph of appellants' answer.

The fourth paragraph of the appellants' answer stated substantially that the two deeds under which the appellee claimed title to the real estate in controversy were fraudulent and void. These deeds were each dated, on the 1st day of March, 1870, of which one was executed by appellee and her husband James W. Hamrick, to one William G. Homan trustee for appellee Emma O. Hamrick, and the other deed was executed by said Homan, trustee, to the appellee. It was averred that these two deeds were at their dates, and still were at the commencement of this suit, as against the creditors of appellee's husband James W. Hamrick, fraudulent and void, in this, that he, James W. Hamrick, was then and there indebted in, to wit, the sum of $ 10,000, and had not, at the dates of such deeds, sufficient property to pay his debts, nor did he have at any time for five years thereafter sufficient property remaining after the...