8 Mo. App. 198 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The petition alleges that plaintiffs are husband and wife,
Defendant, at the trial, objected to a jury, on the ground that the proceeding was equitable in its nature. The only question presented by the record is as to the action of the trial court in trying this cause as an action at law.
It is not disputed that Mrs. Alt received this property by gift since the passage of the Act of March 25,1875. It is by virtue of that statute made her separate property. The language of the law is : “Any personal property belonging to any woman at her marriage, or which may have come to her during coverture, by gift, * * * shall be and remain her separate property, and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband.” Rev. Stats., sect. 3296 ; Acts 1875, p. 61.
At common law, the chattels personal of the wife in her possession vested in the husband and became absolutely his. Equity recognized a settlement of property in trust for the sole and separate use of the wife, and, if necessary to protect her rights, would in some cases regard the husband as owning such property as her trustee. The effect of our statute is not to create a trust in the husband for the benefit of the wife, and to settle certain property upon him, or any other trustee, for her separate use. The plain intention of the Legislature in declaring that certain property shall be the separate property of the wife, is to abrogate pro tanto the common-law rule, and to make the wife the legal owner of personal property acquired by her by gift, during coverture or otherwise, according to the terms of the statute. In law, husband and wife are one person; and
It is contended that if she can sue at law in regard to this property, it would follow that she could be sued at law, and that execution on a judgment against her might then be levied upon the goods made her separate property by statute ; and as this cannot be done, it is said that she cannot be regarded as the legal owner of this property, unmarried as far as her rights thereto are concerned. A judgment against a married woman is at least irregular, and cannot be enforced during coverture, and is therefore practically void whilst coverture lasts ; and though the Legislature has conferred upon married women the legal ownership of personalty, it has neither provided that a judgment at law may be rendered against the married woman with re
If it be urged that to say that a woman is sui juris in regard "to property whilst her contracts in regard to it cannot be enforced at law, and while she cannot sue alone to enforce her rights, is to use words in a non-natural sense, we do not know that we need be particularly concerned at this. By law this property belongs to the wife alone, without any trust, or fiction of a trust. The old common-law rules as to the rights and duties of married women are being constantly modified by legislation, and tend to complete abrogation. Whilst the laws in re
We think that the .learned judge of the Circuit Court committed no error in submitting to a jury the questions of fact
in this case. The judgment is therefore affirmed.