| Ill. | Apr 15, 1865
delivered the opinion of the court:
The only questions made in this case, arise on the third and sixth instructions given by the court, on behalf of the defendant. The third is as follows: The possession of personal property is prima fade evidence of ownership, and the term “personal property,” applies as well to notes and money, as to goods and chattels.
The truth of this proposition is not denied, but it is insisted, it was not applicable to the case, and was calculated to mislead the jury.
It appears, certain notes amounting to four thousand dollars, were claimed as having been presented as a gift by one Steere, the brother-in-law of Mr. Gray to Mrs. Gray, and which had come to the hands of her husband, B. W. Gray. The court had, before, in the first instruction, told the jury, if they believed from the evidence that Steere gave Mrs. Gray the money or notes as a present, then the money or notes were Mrs. Gray’s; and if they believed that the property in controversy was bought with this money or notes for Mrs. Gray, then' the property became Mrs. Gray’s; or if they further believed from the evidence, that Mrs. Gray sold the property to the plaintiff, then they will find for the plaintiff. To the same effect, are 1he second and third instructions. In the fourth instruction, the court distinctly told the jury, on behalf of the plaintiff, that a husband may act as agent for his wife in the control and management of the personal property of the wife, and if the property controlled by the husband, is, in fact, the property of the wife, then such control and management by the husband, does not alter the title to the property, and if they believed from the evidence, that the property in controversy was the property of Mrs. Gray, then, even if Gray did control and manage it, this did not make it the property of Gray.
"We think, with these instructions before the jury, they could not possibly have been mislead by anything contained in the third instruction on behalf of defendant. Though the possession of the notes by Gray might be prima fade evidence of title in him, it was subject to be rebuttedby other facts of the case, to which the attention of the jury had been specially directed by .the instructions of the court.
The sixth instruction is as follows:
The court instructs the jury that although the notes given by Steere to Mrs. Gray, may have been in fact her own by a gift from Mr. Steere, yet if the jury further believe from the evidence that Mrs. Gray gave said notes to her husband, B. W. Gray, to trade upon, and expend and lay out as he thought proper, and that said B. W. Gray bought the billiard tables in question without any special understanding or agreement with his wife, Mrs. Gray, that the same should be done in her name, then they became the property of B. W. Gray, as far as his creditors are concerned and were liable to the execution in favor of Ashley, and the jury will find for the defendant.
The appellant objects to this instruction, for the reason, as he understands it, that it asserts the husband may not act as the general agent of his wife in respect to the management of her separate property; and that unless specifically instructed, in respect to every detail and every item, he can make no purchase with the separate property of the wife as her agent, and that although her instructions may be specific, as to each and every item, yet if the property be purchased in the name of a third party, and with the assent of such third party, and not in the name of the wife, the property can be taken in satisfaction of the debts of the husband, by the husband’s creditors.
We do not understand this instruction as countenancing the idea, that a married woman, possessed of a separate property, may not employ an agent to transact her business, either generally or in a particular case, and that she may employ her husband to act as her agent, is nowhere repudiated by the terms of this instruction. The wife must be careful to see that the husband is acting, in truth and in fact, as her agent and not on his own account. Very slight circumstances, may, in certain cases, be sufficient for a jury to infer that the property he is managing, is, really, his own and not that of the wife—that she has left it at his own disposal, abandoning her own control over it and bestowing it upon him. This she may do, and a jury will not require much persuasion, in a proper case, to induce them to come to such a conclusion. This instruction left the jury to determine, from the whole evidence, whether the money of Mrs, Gray was, or not, given to her husband for Ms purposes, or to be invested for the benefit of his wife. This was the question fairly before the jury by the instruction, and they have found, and we think properly, the purchase of the saloon and billiard tables was an investment for the benefit of Gray, and with his own means. We say with his own means, because it is apparent from the testimony, that the notes of four thousand dollars, a part of which paid for this property, were the property of B. W. Gray, he and Steere having combined together to defraud his creditors by a sale to them of the stock of goods, at fifty cents- on the dollar of their value, out of which, Steere admits, he made from two to three hundred per cent, over and above the cost. In equity and justice, the profits belonged to Gray’s creditors and to Gray himself, a part of which he received through this pretended gift of four thousand dollars to Mrs. Gray. The whole transaction seems to us, an iniquitous one, by which, no person concerned, should be allowed to profit.
Another suggestion may be properly made. The witness, W. Doolittle says, that this property was bought by Gray for the plaintiff Brownell, who paid the money.
Mrs. Gray, in her evidence states, that after her husband’s death, she sold out the whole establishment to the plaintiff, and took his notes therefor. The jury must have concluded from these different statements, that the appellant was a mere cover for Gray, and were warranted in believing the funds with which he was operating, were really his own, being his share of the proceeds of the fraud practiced on his creditors through the agency of Steere. The whole record shows a clear case against the appellant, and does not present such a case as the act of 1861 was designed to protect. The evidence fully sustains the verdict.
Perceiving no error in the instructions complained of, and no error in the record, the judgment must be affirmed.
Judgment affirmed,.