80 Mo. 341 | Mo. | 1883
This was- an action for the claim and delivery of personal propei’ty, consisting of some wheat, household furniture, wagon, sewing machine, books, bookcase, etc., and was brought before a justice of the peace by whom judgment was rendered for plaintiff. On an appeal to the circuit court, judgment was given for the defendant against the plaintiffs and their sureties, for return of the property or payment of the value thereof, which was assessed at $70.
In the amended statement it is alleged that the plaint-
In the trial of this case the testimony consisted almost entirely of the statements of Mrs. Alexander. She was married in 1874 to Simeon Alexander, her present husband. At that time she was the widow of John Y. Curl, deceased, who died in 1872. After his death a part of his land was set apart by the probate court as the homestead of his widow, where she was residing at the time of her second marriage. All the property claimed in the suit, except the wheat, wagon and sewing machine, she acquired from her former husband’s estate. The wagon she purchased with her own money in 1872. The sewing machine she bought in 1876 with woo'd and apples from the homestead and proceeds of the sale of a colt foaled by a mare she had acquired from her first husband’s estate. The wheat was the product of the said homestead in 1879. It appears that in September, 1878, the wife and husband separated, the husband intending to leave her. She testified that he then gave to her all his interest in the personal property possessed by her before marriage with him or purchased since with her own money, and that this included all the property excepting the wheat. About two months after he left her he changed his mind and returned again, and they were residing together on the same homestead where all the property was found at the time of the attachment. Simeon Alexander never owned any property of his own, but was insolvent at the date of his marriage and continued so until the time of the trial. The debt on which the attachment was sued out and upon which judgment was
I do not think the plaintiff was entitled to recover on this evidence. As to the property acquired by her from her former husband’s estate prior to her second marriage, it consisted of chattels in possession. This property prior to the act of 1875 vested absolutely in the husband and became subject to his debts. Sallee v. Arnold, 32 Mo. 532; Woodford v. Stephens, 51 Mo. 443. There is no evidence in the case tending to prove that she -/ver had or was recognized by her husband as having a separate estate in this property. McCoy v. Hyatt, ante p. 130. The wagon which she purchased in 1872 would go to her husband upon her marriage along with the property acquired from her first husband’s estate. She could not lawfully claim the sewing machine purchased in 1876. The evidence shows that it was purchased in part with the proceeds of a colt belonging to her husband and in part with wood and apples coming from the farm. After, as well as before, the act of 1875, the husband was entitled to enjoy the rents, issues and products of his wife’s lands. The General Statutes of 1865 exempted them from execution for most of his debts and prohibited him from alienating them without joining with her in a deed. R. S. 1879, § 3,295. This machine, although acquired after the act of 1875, was clearly not acquired “with her separate money or means,” so as to give her an independent title within the provisions of said act. R. S. 1879, § 3,296. The wheat being the product of the land, and vesting in him subject to the General Statutes of 1865, could not lawfully be claimed by her as against the process and debt- in this case. The General Statutes of 1865 expressly subject such issues and products to attach
It is objected by appellants that the judgment was erroneous as being in part a general judgment against a married woman. Under section 2903, Revised Statutes 1879, it is provided that the judgment for defendant shall be against plaintiff and his sureties. One of the plaintiffs is a married woman, and it is claimed that a general judgment cannot be rendered against her for anything done by her during coverture. A manned woman is not liable on her contracts made during coverture, and no personal judgment can be rendered against her on account of them. She is liable conjointly with her husband for her toi’ts committed during coverture, and a general judgment against her and her husband can be rendered therefor. Cooley on Torts, 115 ; Schouler Dom. Rel., 102, 103. This liability relates only to such torts as she may have committed out of his presence and without his order or consent, otherwise he is liable alone for them, and she is exempt upon the presumption of being induced to commit them under his coercion. If she had taken and carried off the goods she sues for under the order of her husband, she would have been exempt from liability. She has, in conjunction with her husband,