69 Ill. 452 | Ill. | 1873
delivered the opinion of the Court:
We think it clear, from the evidence before us, that appellant has not been paid for his materials furnished, and work and labor done in painting the house. The Cole deed was a nullity, for the reason that there is no such property in existence as it assumed to convey, and appellant's receipt was given in ignorance of the facts, and does not conclude him.
The only question upon which there is any serious controversy is, whether the wife is, under the circumstances, bound by the acts of her husband.
The law is familiar, that where the owner of property holds out another, or allows him to appear, as the owner of, or as having full power of disposition over the property, and innocent parties are thus led into dealing with such apparent owner, or person having the apparent power of disposition, they will be protected. Their rights, in such cases, do not depend upon the actual title or authority of the party with whom they have directly dealt, but they are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power he caused or allowed to appear to be vested in the party, upon the faith of whose title, or power, they dealt. Bigelow on Estoppel, 468 ; Higgins v. Ferguson et at. 14 Ill. 269; Donaldson et al. v. Holmes, 23 id. 85 ; Schwartz et ux. v. Saunders, 46 id. 18.
Here, the wife had the same complete and ab.solute power and control over her property, free from the interference of her husband, that she would have had if she had been a feme sole. While she could act by her husband as her agent, he had no authority, as husband, to meddle with or in any manner control the property, without her consent; and it was incumbent on her to see that his acts were within the powers actually confided to him, in order that frauds should not be practiced upon innocent parties. Married women, h in having the powers and privileges of femes sole conferred I upon them with respect to their property, must assume the' responsibilities and duties which necessarily follow. The one is the price of the other.
It is denied, in the answer of the wife, that the contract for furnishing the materials and painting the house was entered into, or that the materials were furnished and the work done, with her knowledge and consent; and she denies, moreover, that she knew that the work was being done. It is clear to our minds that these allegations are disproved by the evidence of the plaintiff; and she has offered no evidence to sustain them.
Three witnesses swear that she was, on two different occasions, at the house while the work was being done, in company with her husband, and that appellant then conversed with her husband, in reference to the work, in her presence.
It is shown, and nowhere contradicted, that while the work was being done, she and her husband were boarding only about one block from and in plain view of the house; that the house was being fitted up for a residence for herself and husband, and .that soon after appellant’s work was completed she and her husband moved into and occupied it as such.
We can not believe, under this evidence, that she was ignorant either of the character or the object of the improvement being placed on her property. Her deed was dated on the 1st day of June, 1872. The contract between appellant and her husband was made on the 24th day of July following, and her deed was filed for record some four days after. She thus, by neglecting to record her deed in a reasonable time, placed it in the power of her husband to hold himself out to the world as owner of the property, in which capacity he contracted with the appellant, who is shown to have acted in good faith, and without notice of her claim; and, subsequently, by her presence, while the work was being prosecuted, and by thus failing to give notice of her claim of ownership, she gave confirmation to appellant’s belief of her husband’s title. The work done and materials furnished were to increase the value of her property. They have become hers, as absolutely as the lot upon which the house is situated. It is immaterial, as we have already shown, whether she in fact authorized the particular contract to be made or not. The question is not what power did her husband actually have over.the property, but what power did she, by her acts and omissions, permit him to represent himself to the appellant to have. We do not doubt that the husband, as well as a stranger, may, in good faith, make improvements upon the wife’s property, in the nature of a gift to her, and that she would not, in such cases, be bound for the payment of what they cost; but that is not specifically set up in the wife’s answer, and even if it was, it could not avail under this evidence. It is an evident proposition that a husband can not, with the connivance of the Avife, commit a fraud upon another for the purpose of presenting her with the proceeds of the fraud, for their future mutual use and enjoyment.
We hold that, under the evidence, the Avife is estopped from denying that her husband Avas acting as her agent in making the contract for furnishing the materials and painting her house, and that, as appellant has not been paid according to contract, he is entitled to enforce his lien.
The decree of the court below is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.
Decree reversed.