Brummet v. Weaver

2 Or. 168 | Or. | 1866

Shattuck, C. J.

It is assigned, as one of the errors, that the Circuit Court allowed a record of registration of Mrs. Brummet’s property to be read in evidence after appellant had objected to the same, on the ground that said record showed that the property therein mentioned was acquired by purchase, and not by gift, devise, or inheritance. We think this objection to the admissibility of the paper is not well taken; for, if the whole paper be examined with reference to this objection, it will appear upon its face, that the property therein described as separate property was received by Mrs. Brummet in exchange for her land claim, which she had acquired from the government under the donation law of September 21th, 1850. The Oonstitmtion of this State, article 15, section 5, provides that the “property and pecuniary rights of every married woman at the time of marriage, or .afterwards acquired by gift, devise, or iizheritance, shall not be subject to the debts or contracts of her husband;” and the “statute of 1859 has made provision for the registration of the separate property of married women “ acquired by gift, devise, or inheritance.” We think that these provisions of law must be so construed as to allow a' married woman not ¡only to hold property as separate property, without the intervention of a trustee, but also to exchange one species of her .separate property for another; and to authorize her to sell any part of her separate property and retain the purchase money as her own; or with it to buy ‘other property to be h.eld by her in the same manner and for the same purpose. In this case, had the objection been that this paper was not competent to show how she acquired the property, it would have been well taken; for clearly, by the statute authorizing the registration, neither the record nor the original declaration could be used for any such purpose. (Gen. Laws, page 181, section 1.) For it is expressly provided that “such declarations shall not be evidence of’ any fact, except, that such married woman has elected to hold the property or pecuniary rights described in such declaration as her separate property.” The issue in this case is as to the rightfulness of Mrs. Brummet’s claim to the property in ¡dispute as her separate property; and it is pertinent to this issue to show as a fact, that, prior to the commencement of this controversy, she had publicly claimed this property as in irer own right. The statute expressly provides that such claim, or the fact that such claim is made, may be shown by the record of registration. For the purpose, then, of showing' the relation in which the respondent had placed herself to the property, we think the paper was properly admitted and read to the jury. There appears, by the bill of exceptions, to-have been some evidence adduced upon the. trial tending for show that in 1861, when the respondent made and recorded' this paper, she was the wife of Banner Brummet; that she, after that date was divorced, and in 1864 re-married to him f that during the time between the divorce and the re-marriage she held the property, which during the marriage she had registered as separate property; one of the animals having' been exchanged for one of those in dispute in this case; that at the time of the re-marriage, she had this property and still claimed it in her own right, but that no new registration off it was made after the second marriage. Upon submitting the case to the jury the court below was asked, by the appellant, to instruct the jury “ that the registration of a married woman’s separate property is not notice to a stranger of any property not mentioned in said registration,” which; the court refused, and appellant excepted; and this refusal is assigned as error. ¥e, think this instruction should have been given, for the statute has declared in express terms, that such record “ shall not be evidence of any fact except that such married woman has elected to hold' the property, or pecuniary rights, described in such declaration,” etc. (Code, page 787, section 4.) As to the horse claimed in this suit, which was not mentioned in the reco ded declaration, this record could not of itself, in any event, be considered as notice to a stranger, for it is not described in it.. The court below instructed the jury, that the plaintiff, being a married woman, and having separate property, and regis-. tered as such, as provided by statute, may sell and dispose off such property, and receive the proceeds thereof, and invest them in other property, and hold the property thus acquired wnder said registration, independent of the debts and con•tracts of her husband. To this instruction the appellant •excepted, and assigns the giving of the same as error. The common law, which divested a woman on ¡.her marriage of her personal estate, and of control over her realty, and subjected her property to the debts and contracts of her husband, was not repealed by the statute of 1859; and a married woman acquires no rights in contravention of the common law by virtue of that statute. That repeal of the common law was effected. The great change in the relations of husband and wife to the property of the wife was wrought by the Constitution of this State. (Article 15, section 5.) Under that instrument no woman loses any pecuniary rights by marriage. "Whatever property a woman has at the time of marriage, or afterwards acquired by gift, devise, or inheritance, remains hers, until she, by her own consent, express or implied, parts with it. Without that consent she cannot be divested of her title to it, whether registered or not. No one having notice of her claim can acquire any title to her pro-perty by any contract of her husband to which she does not «expressly or by implication assent. If she has duly registered her property, the registry is notice to the world, as to all property described in it. If she has not registered it, we think actual or constructive notice, as recognized in cases «of deeds and mortgages of land, would be sufficient to bind the party attempting to deal with the husband concerning her property. It seems that the registry act above quoted (Gen. Laws, page 786) has made no provision concerning property owned by the wife at the time of the marriage; but her title to such property after marriage is no less indefeasible. Whether, however, a purchaser of such property from the husband, acquires any- title, or whether the .wife has a right to repudiate a sale by the husband and recover the property, will depend, in every such case, upon the conduct «of the wife in regard to the management of the property; or, in other words, it will depend very much upon how far «the wife will be deemed, by recognizing and acquiescing in the acts of the husband in regard to the property, to haves waived or abandoned her rights under the Constitution, and! to have submitted to and affirmed Ms rights at common law. "When a registry law has been enacted,, the wife must comply strictly with its provisions in order to bind innocent parties ; and the registration will have no effect as to-strangers without notice, beyond what the statute has given to it.. In other words,, it will not affect any property except the specific property-described in it. Entertaining these views relative to the effect of the constitutional provisions, and of the statute of 1859, we are of opinion that the instruction given by the court below to the jury was erroneous; and though, there might possibly have been a verdict for the plaint-tiff, without regard to this instruction, yet it is quite probable that the jury did regard it, and by it were mislead and perhaps induced to give less attention to the other evidence than the merits of the case demanded. Another instruction, to which exception was taken and for which error was assigned, was to the effect “ that it makes no difference that the woman married subsequent to this, registration, she might have been married a half a dozen, times, the one registration is sufficient.” If the construction of the statute which we have adopted and. announced above,, be correct, this instruction should not have been given. We. are of the opinion that a divorce,, or the, death-of the husband,, operates as a revocation of the registration.- "Upon the happening of either of these events, the rights of the woman to the property ceases to be controlled, by or dependent upon the registration. She holds the property of an unmarried-woman, which she is in fact. If- she marries a second time she must register the property anew; or, if, having registered it after marriage, she exchanges any part of it for other property, she must register the property last acquired, if she would secure the advantages contemplated by the statute.

Upon these grounds we think the judgment, below should! be reversed, and a new trial ordered..