Wyatt v. Wyatt

• Decision Date: 08 December 1902
• Citation: 32 So. 317,81 Miss. 219
• Court: Mississippi Supreme Court
• Parties: GEORGIANA S. WYATT v. JAMES R. WYATT ET AL

32 So. 317

81 Miss. 219

GEORGIANA S. WYATT v. JAMES R. WYATT ET AL

Supreme Court of Mississippi

December 8, 1902

October 1902

FROM the chancery court of Holmes county HON. STONE DEAVOURS chancellor.

Mrs Wyatt, appellant, was complainant in the court below; James R. Wyatt and others, appellees, were defendants there. From a decree in defendants' favor the complainant appealed to the supreme court. The opinion states the case.

Affirmed.

W. L Dwyer, for appellant.

The receipt and appropriation bye the husband to his own use of the property of the wife, which constituted him her debtor, is without limit in point of time on her right to sue and recover, except as to one year's interest. This right is given and controlled wholly by § 2292 of the code of 1892, and not the general statute of limitations, and is a plain and well settled exception to the latter.

This provision first appears in our laws, substantially as now, in the code of 1857, art. 28, p. 337.

It was re-enacted in the code of 1871 as it now appears, with scarcely the change of a word or letter.

These provisions were construed by the court in Hill v. Bugg, 52 Miss. 397, which was only overruled in part, and Thomson v. Hester, 55 Miss. 656 (see also Kaufman v. Whitney, 50 Miss. 111), and held unqualifiedly to be the only limitation on the wife, the limitation extending only to rents and interest, and not affecting the corpus of her debt.

This section was included in the code of 1880, as § 1176, and Thomson v. Hester, 55 Miss. 656, cited as explanatory of that section, and was re-enacted by the legislature as therein construed.

It was re-enacted in the code of 1892 as it stood in that of 1880, as § 2292, and both Thomson v. Hester and Hill v. Bugg, as explained, were cited as explaining it.

In both the code of 1880 and of 1892, this was a contemporary construction of its meaning, and clearly took the right of the wife against her husband, where he had received and appropriated her property to his use as F. A. Wyatt did, out of the statute of limitations.

This is the settled doctrine of our court for another reason. Where a statute which has been construed by the supreme court, is on a codification of the laws re-enacted without material change, and the same question again arises, the construction will be controlling. Shotwell v. Covington, 69 Miss. 735; Wetherbee v. Roots, 72 Miss. 355.

Also if sec. 94 of the constitution of 1890 has any bearing on this particular question, the contemporaneous construction by the legislature of this provision would also control. Chrisman v. Brookhaven, 70 Miss. 478.

To create the relation of debtor and creditor between husband and wife, neither writings, evidences of debt, nor contract, express or implied, are required. The law itself creates the relation from the receipt and appropriation by the husband of her property. The same act in any other than the husband would constitute a tort, not a debt.

The permission given the wife to sue by the statute of 1880, would not of itself start the statute of limitations running, being wholly permissive.

If the debt of Mrs. Wyatt, the appellant, was not barred, then the writing purporting to relinquish her interest in her husband's estate is without consideration, is nudum pactum and in no sense binding on appellant, and the decree appealed from should be reversed.

The deed of trust to Davis, under which the land was sold, and purchased by Wyatt, was a valid and subsisting encumbrance on the land both at the time of the purchase by Wyatt, and at the death of Mrs. L. A. Wyatt, their mother, through whom defendants, appellees, claim title. If appellees are permitted by the court to treat the purchase of F. A. Wyatt at the trustee sale, as in trust for them, then they should be compelled to contribute four-fifths of said incumbrance, paid off by Wyatt to his estate. They should not be allowed to take the land, discharged of the incumbrance, especially since the the right of the widow has accrued thereto. Her standing in a court of equity ought, at least, to be as good as theirs.

Monroe McClurg, on same side.

The general statute of limitations found in § 2737, et seq., of the code must be construed in connection with § 2292 of the code which deals especially with a limitation of a claim by the wife against the husband for rents, profits and income of her separate property.

Does the general statute of limitations apply to husband and wife? The argument for an affirmative answer does not reach beyond those statutes which have disenthralled the wife from fictions of law and technical bondage. Giving her power and dominion over her separate estate, and authority to sue her husband was never intended to destroy her queenly estate as wife. Public policy forbids. The home of the two is still the central idea in the hope for the preservation of democratic principles and American institutions, and is not to be destroyed by such construction. The house must not be divided against itself, especially where the interests of no one outside of its cover is involved. So far as I have been able to ascertain, this court, nor any other court, has not held that the general statute of limitations applies to husband and wife. The en-grafting of exceptions spoken of in the law has reference to its application as between strangers. It is not a question of "exception to the statute" in its application to husband and wife, but purely a question of construction. Transactions between husband and wife, none other being interested save the heirs, has always been a sacred matter in the eyes of the law with special laws governing matters involving this relation. Statutes of course govern, but in the absence of statutes the common law principles control. Who can imagine a worse home destroyer or a wider avenue to evil and fraud, than a rule compelling husband and wife to sue each other? The statute does not require it; it is purely permissive without a statutory bar. Who is there to complain in a case like this? The heirs? They wear the shoes of the father. So it is, we have a general statute of the limitation of actions that, because of public policy, does not apply in a cause in a court of equity where the wife claims reimbursement out of the husband's estate for money, not lent him or used by him with her express consent, but where he took notes for her property, negotiated them and used them, without her consent, and without any promise to repay her "on demand" or at any other "fixed time."

This court cannot shut its eyes to the equitable complaint of the wife in this case. Looking to the history of our logical legislation on this subject, the court cannot fail to conclude that it was not intended in divorcing the wife from her legal disabilities under the law, to otherwise put her in the attitude of a stranger with reference to her claims against her husband, for her money or estate by him appropriated to his personal use without any sort of contract or agreement with her. Let me repeat; it is not engrafting an exception upon a statute that fixes the time within which a suit may be brought after the right of action has accrued. It is merely a declaration of what the law is in such state of case. As before stated, it is rather a construction of law in such case.

H. Elmore and Noel & Pepper, for appellees.

The appellant contends that the contract by which she relinquished her claim to share in her husband's estate is void; first, because it is against public policy, and second, because it is without valuable consideration.

In discussing illegal contracts the supreme court in Fairley v. Fairley, 34 Miss. 18, says: "It is not what the law permits." In Wilkins v. Riley, 47 Miss. 313, it is further said, "It is a rule that every presumption of law is in favor of the legality of a contract, and it is incumbent on a party alleging its illegality to show everything to render it so."

This court has never said that public policy opposes contracts of this kind. The cases which have been before the court involving that question, arose before the removal of the disabilities of the married woman, and it was uniformly held in accordance with the then existing state of the law that she was not bound, because in only a few instances could she bind herself by contract. But when the contract was made with the husband through the medium of a trustee, acting for the wife, then the husband was bound by the undertakings, and the trustee by his, but not the wife, because of her disability, not on account of the opposition of public policy. "A deed of separation made between a husband and wife alone is void, and valid when made through the agency of a trustee acting for the wife, and when so made binding alone upon the husband. and trustee." Stephenson v. Osborne, 41 Miss. 119; Tourney v. Sinclair, 4 Miss. 327; Carter v. Carter, 22 Miss. 59.

There being no longer any need of a trustee in those states where married women have been emancipated, a trustee is no longer required. 1 Beach. Mod. Eq. Jur., 198.

Consideration. "Any benefit, however slight, resulting to the promisor by the act of the promisee, though there may be no adequacy in point or value, or any loss, trouble or inconvenience, though trifling, but not wholly worthless in law and in fact, sustained by the promise, at the instance of the promisor, and although the promisee obtain no advantage or benefit from the stipulated act, is a sufficient consideration." Byrne v. Cummings, 41 Miss. 192.

"The law does not look to the amount of the consideration to uphold a contract so that there is a consideration, though trivial." Magee v. Catchings, 33 Miss. 690.

The execution of the notes for the amount of principal and interest of the $ 1, 166.66...