Davison v. Davison

124 P. 1096 | Or. | 1912

Mr. Justice Burnett

delivered the opinion of the court.

1. The following sections of our code will serve to differentiate this case from many of the precedents cited from other states:

Section 7034. “When property is owned by either husband or wife, the other has no interest therein which can be the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or wife who is not the owner of the property, except as provided in this act.”

Section 7035. “Should either the husband or wife obtain possession or control of property belonging to the other either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out' of the same, in the same manner and extent as if they were unmarried.”

Section 7036. “A conveyance, transfer, or lien executed by either husband or wife to or in favor of the other shall be valid to the same extent as between other persons.”

Section 7044. “The property and pecuniary rights of every married woman at the time of her marriage or afterwards acquired shall not be subject to the debts or contracts of her husband, and she .may manage, sell, convey, or devise the same by will to the same extent and in the same manner that her husband can, property belonging to him.”

Section 7049. “Contracts may be made by a wife, and liabilities incurred, and the same enforced by or against her to the same extent and in the same manner as if she were unmarried.”

Section 7050. “All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed; provided, that this act shall not confer the right to vote or hold office upon the wife, except as is otherwise provided by law; and for any unjust usurpation of her property or natural rights she shall have the same right to appeal in her own. name alone to the courts of law or equity for redress that the husband has.”

In Grubbe v. Grubbe, 26 Or. 363 (38 Pac. 182), this court decided that under the general grant of power given in Section 7049, L. O. L., the wife is authorized to enter into parol contracts with her husband and by Section 7036 she has been granted a special power to enter into contracts under seal with him. These sections confer, upon each spouse contractual independence so that each may enter into agreements with the other like they would with strangers. ■

It is admitted that the plaintiff here conveyed the real property to her husband and he conveyed like property to her, the title to which had previously stood in the name of the grantor in each case. The law plainly authorizes such transactions between husband and wife. It is contended as a matter of law that the conveyances were void under Section 7034. True enough, it is said there that “when property is owned by either husband or wife the other has no interest therein which can be the subject of contract between them.” This means nothing more than that if for instance the wife has acquired real property in her own name from any source, a deed from her husband to her for the same property would not add anything to her estate or change the result of curtesy in him if she should die first seized of the lánd in question. On the other hand, a deed from her to him of land already in his ownership in fee simple would not add anything to his estate or bar her possibility of dower. By the execution of the deeds mentioned and exchanged between the parties, each conveyed to the other the title of land which stood in the name of the grantor, and this is manifestly within the sanction of Section 7036, L. O. L. These conveyances are thus at least valid upon their face.

2. If they are to be set aside it must be by virtue of some recognized power of a court of equity. The complaint does not allege in sufficient terms any misrepresentation or deceit practiced by the defendant against the plaintiff. Neither does it aver any compulsion overpowering her will or compelling her in any degree to make the conveyances she now seeks to set aside. In its ultimate analysis the complaint is no more than a statement, in effect, that the defendant was sulky and disagreeable, acting much like a spoiled child, and that with hope of conciliating him and inducing him to act with more pleasant propriety she made him a present of the property in question. According to her story she was not successful in her endeavors and his subsequent conduct did not meet her expectation. As we view the testimony neither party has much to be proud of in behavior towards the other for some time prior to the transaction in question. Connubial bliss, however, is not to be estimated at a price of so much per ton, or yard, or acre, neither is it to be purchased as the caresses of a courtesan. It cannot be made the subject of barter between the two spouses and so far as that is concerned, if she of her own free will and accord, although with the hope of inducing a different course of conduct toward her on the part of defendant, freely gave him her property it must stand as the court finds it. We cannot relieve her from the consequences of her own deliberate acts and deeds.

3. The testimony shows that when they began their married life she was a milliner in a small way, and he a policeman; that they agreed not to keep house but to live in rooms and board and each was to contribute their earnings to a common fund. She managed the millinery business herself until 1902, although he gave to it as much of his time and funds as he could. She does not question but what he put all his earnings into the common purse. In the beginning he had somewhat more money than she had. From 1902 until the close of the business relations between the parties and the settlement evidenced by the agreement attached to plaintiff’s complaint, the defendant gave his entire time and attention to the business, not only of the millinery store but also to matters outside that concern in the way of investing in real property, building upon the same, managing it and generally supervising the whole financial affairs of the parties. She took no active part whatever in anything except the milinery business. She told different parties that her husband was as much interested in the store and their other affairs as she was. In short, a careful study of the record convinces us that the preponderance of the testimony is in favor of the proposition that the accumulations mentioned in the pleadings were produced by the joint efforts of both parties. They kept no books showing the amount of money each invested or the reasonable value of the services which each rendered. It cannot be said reasonably that the labors of either party for the space of twelve years in accumulating property were to be held for naught or were intended as a gratuity for the other. If the parties themselves had not settled their monetary affairs it would be exceedingly difficult, if not impossible, for tribunal to adjust them with financial exactness. The case was one ripe for settlement between them with due regard to each others rights.

4. Having then executed the conveyances to her husband, it is incumbent upon the plaintiff on the issues tendered to show by a preponderance of the evidence some legal reason why they should be set aside.

5. In the testimony, she is practically alone as a witness. She is disputed on all points by the defendant, and as to the plaintiff’s satisfaction with the settlement he is supported by numbers of witnesses with whom she talked after it was accomplished and after defendant had departed from the state, and these witnesses she does not materially contradict. The defendant testified that the proposal for a division of the property came first from the plaintiff and that he objected at first, but finally she said one day “if you don’t make that division I’ll find a way to make you make it.” She does not challenge this statement in any way. Whether or not the property accumulated was the product of her own exclusive earning, the plaintiff had the legal right to convey it to her husband in whole or in part. The great weight of the testimony, in our judgment, shows that she did this without any fear or compulsion on the part of her husband or any undue influence or fraud whatever, but as her own voluntary act and deed. As such it must stand as against anything she has shown in this suit. In reaching this conclusion we have not deemed it necessary or material for any purpose in this case to consider either the alleged divorce proceedings in South Dakota or the defendant’s plea in estoppel.

The decree of the court below is affirmed.

Affirmed.