139 Va. 652 | Va. | 1924
delivered the opinion of the court.
The facts in this ease present a novel proposition in' Virginia jurisprudence. They are undisputed so far as they are material to a decision of this controversy.
Maurice L. Edmonds and Bessie C. Edmonds were married many years ago. They are still husband and wife, .never having been divorced. The wife is the owner, by gift from her husband, of a certain lot of ground in Norfolk city upon which the husband erected a two-apartment house, one apartment being built for a home for the occupancy of both. This apartment was occupied as a home by the husband, the wife and their son, their only child, for over nine years. In September, 1922, the wife deserted her home and her husband, taking their infant child with her. She has declared her intention never to return to the husband or to permit her husband to live with her. The husband is willing and anxious for his wife to return to Jiim and the home they occupied together. In November, 1922, Mrs. Edmonds instituted an action of unlawful detainer against her husband to recover possession of the one room in the' apartment which he occupies. She has legal possession of the remaining apartment and collects the rents. Upon the trial of the case there was a verdict for the plaintiff and judgment was entered thereon by the court. Upon the trial court’s refusal to set the verdict aside as contrary to the law and the- evidence and without evidence to support it, the husband applied for and obtained a writ of error from one of the judges of the Supreme Court of Appeals.
1. The court erred in not setting aside the verdict as contrary to the law and the evidence and as without evidence to support it; and in not sustaining the motion of defendant to set aside the verdict on these grounds.
2. The court erred in granting the instruction asked by the plaintiff.
3. The court erred in refusing the instruction asked by the defendant.
4. The court erred in refusing to permit defendant to prove positively that when plaintiff deserted him and the home, in September, 1922, she did so without any cause or excuse.
5. The court erred in striking out all the evidence on behalf of defendant as to the agreement between him and his wife, as to the defendant’s being permitted to occupy or live in the apartment house in question.
It is not necessary to take up in their order the various assignments of error. The facts of the ease and the questions presented at the trial involve a discussion of a husband’s rights in his wife’s realty, conveyed to her absolutely and without condition, under the circumstances above set out, in which the defenses to the wife’s rights to recover possession thereof were: First, that the husband’s marital rights preclude a recovery under the circumstances; second, that the husband erected the dwelling house for himself and his wife as a home, on the wife’s land; third, that the wife deserted the home without cause or excuse; and, fourth, an alleged contract under the terms of which the husband claimed the right to occupy the home in question for his-life time, as set out in the fifth assignment of error, supra.
Cases similar to the instant ease have arisen in other jurisdictions and the decisions of the courts in the different States have not been uniform. Neither are the statutes uniform. There are two lines of decisions. Neither has questioned the right of the wife to control her own property where there were statutes similar, or nearly similar, to our statute, but on grounds of public
A later ease, State v. Jones, 132 N. C. 1043, 43 S. E. 939, 61 L. R. A. 777, 95 Am. St. Rep. 688, accorded, the husband the right of occupancy where the wife had deserted her home and husband without cause.
The Constitution of North Carolina, article 10, paragraph 6, provides that the property of any female, whether acquired before or after marriage, “shall be and remain the sole and separate property of such female.” This language is not as broad or as comprehensive as that used in our statute. The right to acquire, etc., property as if she were unmarried would seem to exclude every possible or conceivable right the husband could have except curtesy, and it is fully as far reaching as the language used in the North Carolina Constitution, without that above referred to, added by the re-visors. Nothing is expressly said here of the right of possession or use by the husband, however much it would seem to follow that he has no such right. But our statute carries no such doubt, certainly since the
Id the most of the statutes there is nothing said about marital rights. They are content, for the most part, to give the wife the right to acquire property and to own it as her sole and separate estate. On grounds of public policy, the inference could very well be drawn, in cases where the wife’s property had been set aside as a joint or family home with her consent, that she could not desert it without cause and then, taking advantage of her own wrong, turn her husband out. But the legislature of Virginia, assisted by the Code revisors, left no room for any inferences where our statute is
From the foregoing it is evident why the decisions of courts have not been uniform and why they are not particularly helpful in arriving at a conclusion in the instant case. In the second line of decisions referred to, no inferences are drawn in the interest of “marital rights.”
In a leading case, Cook v. Cook, 125 Ala. 583, 27 So. 918, 82 Am. St. Rep. 264, in which the facts were similar to the instant case, and in construing a statute similar to ours but not so direct or emphatic, McClelland, C; J., said:
“Nor is it of consequence that the land of which recovery is sought was at one time occupied by the husband and wife with their children as a homestead, nor, that the husband and children still reside thereon, nor that he at the time of trial, or at all times, was willing for the wife to return to the homestead and occupy it jointly with him. He has no right to compel her to let him into joint possession or occupation of any of her land, nor any right to exclude her from the possession .and occupation altogether, unless she assents to joint*662 possession and occupation with him. There is no law to compel a wife to live with her husband on her land or on his. There is no legal prohibition upon her separating from him and living apart. And having separated from him and left her home in his possession, she is entitled to recover it from him as if he were a stranger. To hold otherwise would be to give the husband rights and estates in the wife’s lands which our statutes not only do not provide for, but expressly provide against.”
To the same effect are Crater v. Crater, 118 Ind. 521, 21 N. E. 290, 10 Am. St. Rep. 161; Buckingham v. Buckingham, 81 Mich. 89, 45 N. W. 504; McDuff v. McDuff, 45 Cal. App. 53, 187 Pac. 37. See also (note) 21 Am. Rep. 749; 30 Corpus Juris, 954.
One' of the incidents of ownership of land is the power to dispossess any one who is wrongfully in possession or occupancy of it, or who is in possession of it without the authority of the owner. So, in the instant case, if the parties here were not husband and wife there could be no question as to the right of the defendant in error to dispossess the plaintiff in error. Can our statute be construed as giving the husband any rights that a stranger does not possess? Does it not expressly put the husband on exactly the same footing as a stranger so far as her estate is concerned? In Minier v. Minier, 4 Lans. (N. Y.), 421, it is said: “In regard to property, the relation of husband and wife does not affect it; as to it the parties are strangers to each other.”
Another incident of the ownership of property is the right to dispose of it, to sell it. The Virginia statute expressly gives a married woman the right to dispose of her estate, and this she can do whether the husband joins in. the conveyance or not. She cannot bar his curtesy, it is true, but during the lifetime of the wife the husband will be dispossessed. This being true, it
The second ground of defense, to-wit, that the husband built the house upon his wife’s property as a home for himself and her, cannot avail to prevent recovery. The deed by which she holds title is unconditional and conveys a fee simple estate to the wife, and the fact that he was the husband and built upon his wife’s land a home for both, would give him no right simply because- he was the husband, as we have seen. Nor would the bare fact that he paid for the improvements upon the wife’s real estate give the husband the right to occupy it against her will and without her consent. By the almost unanimous weight of authority such improvements are held to attach to the freehold as a gift. Arrington v. Arrington, 114 N. C. 116, 19 S. E. 278; Kearney v. Vann, 154 N. C. 311, 70 S. E. 747, Ann. Cas. 1912-A, 1189; Vickers v. Vickers, 133 Ga. 383, 65 S. E. 885, 24 L. R. A. (N. S.) 1043; Selover v. Selover, 62 N. J. Eq. 761, 48 Atl. 522, 90 Am. St. Rep. 478. See also Corpus Juris, p. 702, paragraph 298-3, note 30, and cases there cited. In Arrington v. Arrington, the court said:
“It was also properly held that there was nothing*664 whatever to support the contention of the defendant-that the plaintiff and her heirs had been invested with the title to the land in dispute, to hold it in trust for the defendant and his heirs, or for the plaintiff and defendant jointly; for, while it is true that when the title to land is taken to one person, and the purchase price is paid by another, there is as a general rule, a resulting-trust in favor of the latter, that doctrine has no application where, as here, a husband purchases land and pays for it but puts the title in his wife. In such cases the wife holds the land as a gift, and not in trust. This is presumed from the relation of the parties.”
See also note to Neil v. Keese, 51 Am. Dec. page 571, as to resulting trusts.
There is nothing to rebut this presumption in the instant case; no evidence to indicate that a trust was established in favor of the husband. But even if there was, under the circumstances, it would be a matter of' equity jurisdiction. It is apparent from the foregoing that this second ground of defense should avail the husband nothing against the claim of his wife.
As to third ground of defense, it is difficult to see how desertion by the wife of her home and husband gives the husband the right to occupy the wife’s lands. If he gets such a right it would be because he is her husband (and an injured husband, if you please), because of his marital rights, and these, we have seen, under our statute, give him no right at all. His rights are determined by the statute and not by the fact as to whether the relations between husband and wife are friendly or unfriendly, whether they are living together or apart, or whether they separated for good cause or no cause at all. The trial court excluded evidence as to the cause of desertion, and it is apparent that it did not err in so-doing.
“Q. What was the agreement?
“A. The agreement was to have the house in her .name. I would have one-third, I thought, and she thought so too. I would have one-third interest in the property for the rest of my life, and in case of my death .it was to go to her, and in case of her’s it was to come to me. We had no child then.
“Q. What was the agreement as to your occupying it?
“A. We were to live there for the rest of our lives;
■ that is what we intended.
“Q. Was or was not that agreed to?
“A. Yes, sir.
“Q. State whether or not, pursuant to that agree.ment, you moved into the house.
“A. Yes, sir; we moved in. This is the tenth year. We lived there just like children up to three or four years ago.”
This is clearly insufficient to constitute a contract. It was for the court to say whether or not it amounted to a contract. It could not be left to the jury. The ■court accepting the defendant’s testimony as true, .rightly decided that there was no contract and struck
It is not necessary to pass on the action of the trial court in granting the instruction asked for by the plaintiff and in refusing the instruction asked for by the defendant, further than to say that the purport of the former was that the jury should, under the facts of the case, find for the plaintiff, which was, in truth, the only verdict they could properly find. The latter was properly refused because its purport was to give the jury the-prerogative of passing upon what was a matter of law.
From all the foregoing it clearly appears that theory upon which the trial court conducted the trial of this-case was plainly right; that, as a matter of law, upon the facts, the plaintiff was entitled to recover possession of her premises; and that the judgment of the trial court should be affirmed.
Affirmed.