11 Mich. 470 | Mich. | 1863
This was an action of trover brought in the Court below by the defendant in error, who was a married woman residing with her husband, to recover damages for the conversion of certain bags, barrels, and a quantity of mill feed. The defendant below (plaintiff in error) justified the taking .-and conversion as a constable, by virtue of an execution -.upon a judgment against William W. Alcott, the husband of the plaintiff below. The judgment was rendered on the 23d day of June, 1860, and the execution issued and levy made on .the 29th day of June, 1861. It does not appear wheD the indebtedness accrued upon which the judgment was obtained ; and so far as this point may be material it must therefore be held to have accrued at the date of the judgment.
The mill feed was manufactured at the Allcott Mills, and stored in the Allcott warehouse so called. The mill and the storehouse seem to have been earned on together, and the business done in the name of “ W. W. Allcott, agent.” He testifies that he managed and transacted the entire business, and that, in doing so, he acted as the agent of his wife; but one of the main questions in the case was, whether it was in truth the business of the wife, or that of the husband.
The land on which the mill and storehouse were erected was conveyed to the wife by two separate deeds, in April, 1859; but it does not appear whether it was a gift or a purchase, or by whom the consideration, if any, was paid. Nor does it appear whether she had, at the time of the conveyance, any separate property or capital of her own. The whole business of building the mill and warehouse was superintended by the husband, and, as he says, done in the name of “W. W. Alloott, agent.” The -sign on
Thirty-four promissory notes, amounting in the whole to eight thousand dollars, were executed by the husband, in May, 1859, payable to his own order, and secured by a mortgage executed by the wife upon the real estate; most, if not all these notes were negotiated; and a part •of them came into the hands of McNair, and were passed, as McNair thinks, to the credit of Mrs. Alcott. The accounts were kept in the name of “W. W. Allcott, agent.” The husband, being asked what became of the ■means raised with the above notes of eight thousand dollars, says, “it was used for different purposes; some to buy wheat, and for other purposes in and about the mill; -could not say how it was all used.” It is not shown that ■any of these notes had been paid, and some three thousand dollars of them are shown to have been in the hands of McNair’s assignee at the time of the trial. These notes with the joint note of himself and wife for twelve hundred and fifty dollars already mentioned (and which was not shown to have been paid) constituted all the indebtedness of the husband of which there was any proof. An offer was made by the defendant to prove, by the admissions of the husband, that he was, during the whole time, in debt to a large amount; but this was excluded by the Court, and we think properly; the wife was not to be bound by such an admission of the husband; he might have been examined upon the point, as he was sworn as a witness in the cause, or the fact might have been proved by any other competent evidence like any other fact in the cause — and the proof would not necessarily be confined to judgments and decrees as. supposed by the plaintiff’s ■objection.
There was evidence on the part of the defendant tend
This statement is sufficient to present the only question we deem it necessary to decide in the present case — the competency or legal capacity of the wife, under our statutes in reference to the separate property of married women, to engage in, and to carry on a general trade or business of this kind. In the present case, it is true, such was the equivocal nature of the testimony upon some of the essential points, its ambiguity, and the entire absence of any evidence upon others vital to her claim, that, when taken in connection with the fact of the husband’s credit as well as his services going into the business — if the case were before us to be decided upon the evidence stated in the bill, we should have no hesitation in saying she had failed to establish her right to the property in question, though her capacity to carry on the business were admitted. It may be a fair question, we think, whether the evidence was such as ought, without further proof, to have gone to the jury. At all events, if the whole evidence is stated in the bill, so far as it bears upon her fight to the property (as we think probable from the frame of .the bill), We should be justified in using the language of the Supreme Court of Pennsylvania, in a somewhat similar case (Gamber v. Gamber, 18 Penn. St. 366): “On the facts which appear in this case the Court below ought to have given a charge which would have swept away the plaintiff’s claim in a single breath.”
But, as already intimated, the only question we deem, it necessary to discuss, is the question of the wife’s competency or legal capacity, to carry on this general trade or business. The Court below held that she was thus competent; and this was the fundamental principle of the charge. We shall discuss this question in a somewhat broader form than we think is warranted by the evidence, and upon the admission of all it is claimed the evidence in any manner tends to show; that the real estate was hers, including the mill and warehouse; that the business was all, or nearly all, done upon borrowed capital, or, in other words, solely upon her personal credit and the security which the proceeds of the business furnished, and without the element of her husband’s credit; that a small amount of it was obtained on the security of her real estate, and that she, may have contributed a comparatively insignificant amount of her own means (of which there is no evidence). But the broad question, whether she might not be competent to carry on such a business on her own real estate, with capfital already exclusively her own, and without resorting to her personal credit, is not claimed to be warranted by the facts, and will not be affected by the decision, except so far as it may be affected by the same reasoning. The question is one not free from difficulties. The only ground on which her competency is asserted, is, that the ownership of the real estate, as her separate property, carries with it as an incident the right to use it in any manner, to the same unlimited extent as a feme sole, or any other person might do, to make it produce the greatest profit to the owner; that, as to such property, and the rents, profits and income thereof, and their management, and the uses to which she may choose to apply them, the common law disability of coverture has been entirely removed.
It is quite clear, we think, that the act of 1844 did not enlarge the capacity of a married woman to the extent claimed, if it did even give her any right to use or manage the property against the will of the husband. It simply declared that “any property, real or personal,” acquired by her in any of the modes authorized by the act, “ and the rents, profits and income of such real estate, shall be and continue the real and personal estate of such female, after marriage to the same extent as before marriage; and none of said property shall be liable for her husband’s debts, engagements or liabilities, but shall be liable for all debts of the wife contracted prior to her said marriage.” And this is followed by the proviso, that “nothing in this section contained shall be construed to authorize any married woman to give, grant or sell any such real or personal property during coverture, without the consent of her husband, except by order of the Judge of Probate, or of the proper court of the county ; and that, upon a separation between such husband and wife, saving by an adjudication of court, such married woman shall, in no case, be authorized to remove any such property from the premises of the husband without his consent.” And the act further provides that, “if any married woman shall die without disposing of such real estate” (with the consent of the husband or leave of the court must be understood) “he shall have a life estate therein by the curtesy.”
But it can not be denied that the act of 1855 is an enabling act, and removes the common law disability of coverture, so far, at least, as to enable her to “contract, sell, transfer, mortgage, convey, devise, or bequeath” any of her sole property which she is authorized to acquire
But whatever may be the extent of her power to bind herself by contract, under the third and fourth sections, and the amendment of 185'T (though we think these powers must be construed as having reference mainly to the sole property and its management), it is clear that the statute is entirely silent as to her right to manage her property by the application of her time and personal services. And, as at common law her time, services and earnings belonged to her husband, and the statute no where expressly professes to deprive him of these rights, in any respect, or to relieve her from the duties they imply, and can not be construed to limit such rights and duties otherwise than as the power expressly or impliedly given her over her separate property may operate as such limitation by implication; it is clear that her right to devote any part of her time and services to the management of her own separate property (which must thus far limit the husband’s common law rights) must depend entirely upon inference. The powers to be inferred should, therefore, be such as to harmonize with the common law rights of the husband, as far as they reasonably may, consistently with the purpose
But, while it is clear that she may sell any of her property and invest the proceeds at interest or in other property, as occasion may require, and it may be difficult, perhaps impossible, to lay down any general rule applicable to all cases, by which her right to continue and extend these operations, and to devote her time and services to the management of her property, may be governed; and it may be necessary to leave each case to stand mainly upon its own peculiar facts; yet, we think, as a general rule, her rights do not extend so far as to enable her to enter into a general trade and business, like that here in question, and which is to be carried on mainly upon credit; or any other general business thus carried on, the proper attention to which, by herself, would be calculated to require the employment of her time and services generally, to an extent which (if properly attended to) would deprive the husband substantially of all her services and earnings, and render her incompetent to perform her obligations to ■her husband, or the ordinary duties pertaining to the household. If it were competent for her to carry on such general business wholly or mainly by means of her own capital (upon which we express no opinion), yet, to authorize it when done mainly upon credit, would be ’ going entirely beyond the purpose for which the power is inferred — the management and use of her separate property in such manner as to enable her to obtain the legitimate profit and income of the property, and would be making the business the principal, and her separate property only a minor object. If this were permitted, and the wife were allowed to enter into such a business as a permanent ■occupation, any woman who might find a friend to give her a vacant lot, or ten dollars in money, or even a small credit, would have it in her power to deprive her husband entirely of all right to the time and services of the wife in the care and management of his household.
We do not speak here of any business or trade usually carried on by females, and which consist largely, and almost necessarily, of female labor, which may be resorted to as a means of support for the wife or family, and which is not of a character inconsistent with a proper attention.to her family duties — such, for example, as that of a milliner. Such trades may stand upon a different ground, and we express no opinion upon them.' Nor do we express any opinion upon the right of a wife to carry on a farm as a direct means of support for herself and family, though the labor may be done mainly by her husband. We confine ourselves entirely to the question of her legal capacity to carry on a general trade or business upon credit, or mainly upon credit, in cases like the present, and those involving the same considerations.
The whole subject is beset with difficulties which must be met as the eases may arise. The object of the statute in securing to the wife her separate property was a benevolent one: and if the statute be confined to the object in view, its operation will be highly beneficial, in securing married women and their families from the consequences of the extravagance or misfortunes of husbands. But, while it should be fairly and liberally construed for these
We have discussed the question of the wife’s right to devote her time and services to the management of her own property and business, and the extent of that right, not because of any services of the wife in the present case — for there were none — but as bearing upon the extent of the power intended to be conferred by the Legislature,
The danger to be apprehended to the rights of the husband from permitting her to carry on such general trade and business may be less than that which is likely to result to creditors of the husband, by putting it in his power to carry on his own business to any extent under the cloak of an agency for the wife. The relation between husband and wife is the most confidential existing in human society; and while _ under our statute the wife may be a witness for the husband and the husband for the wife, neither can be called to testify against the other without the consent of the party against whom the testimony is sought. Under such a system it is easy to see that frauds upon creditors may be perpetrated to any extent without the possibility of detection, if the wife is allowed to carry on business like the present through the agency of the husband. If the right of the wife could be sustained upon the evidence in the present case, it would exhibit the danger to be apprehended in a startling manner. The burden of proof was upon her to show that the property was hers. As she is not shown to have had any such exclusive possession as would dispense with proof of title — the naked possession being in the husband, and tending more to prove his title than hers — and as the property was the product of the business; she must, to establish property in herself, show that the business was hers. But she does not show that a
The judgment should be reversed, with costs, and a new trial granted.
The questions in this case arise concerning the right of a married woman, under our statute, to carry on a general milling business in her own mill, with the consent and under the management of her husband.
It is extremely difficult to harmonize the provisions of our laws relating to the powers and privileges of married women with any of the common law doctrines, or with the mongrel principles applicable in common law countries to their separate estates as administered in courts of equity. The rules of the common law in regard to the powers of married women to contract, were entirely repugnant, in many respects, to those entertained in courts of equity. Neither of the systems had any especial reference to the peculiar personal rights and duties of the marriage relation itself. Those rights and duties are mainly independent of property considerations, and are not in any country necessarily affected by them: — Bish. on Mar. and Div. §§ 37, 38. And I think we are much more likely to arrive at safe and just results, if we regard our Constitution, and the laws which have been passed on this subject, as intended not to patch up and mend with discordant materials any old system, but to substitute a new one, and sweep away entirely every portion of the old one which covered any part of the same ground. We must assume that the people and the Legislature understood what risks were incurred, and determined that any such risks, if they should exist,
By the statute of 1855 it is provided as follows, viz: “That the real and personal estate of every female acquired before marriage, and all property, real and personal, to-which she may afterwards become entitled, by gift, grant, inheritance, devise, or in any other manner,' shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations and engagements-of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her, in-the same manner and with the like effect as if she were-unmarried:” — Laws 1855, p. 420. Sections three and four as amended in 185V allow her to sue in her own name, upon all her contracts and rights, and also in all cases where-a husband has unlawfully disposed of, or incumbered, property which the law will not allow to be disposed of without her consent. They also exonerate the husband from suit on her contracts relating to her sole property, and subject her to suit on all her contracts on which the husband is not liable, or where he refuses to perform such contracts: — Laws 1857, pp. 359, 360.
The statute which gives to a married wopian the same power she would have possessed if unmarried, gives her all the power which any one can possess; for an unmarried woman can make any contract which can be made by a man in regard to his property. Nor is the property concerning which the power exists limited to that which is acquired by any particular method. It may be acquired in any manner, unless there is something in the marriage relation itself which prevents this in regard to particular methods of acquiring property.
It was not claimed on the argument, nor can it be
I have been unable to find any limitation on the power of a married woman to acquire property, or to incur liabilities, on the credit of her separate estate. Questions have sometimes arisen concerning the maimer in which her intention to bind her separate property must be signified. The English doctrine goes upon the simple and intelligible ground that, whenever she makes a promise to pay, she must be presumed to intend that promise to become operative ; which can only be in regard to her separate estate:— 2 Spence Eq. Juris. 515 et seq., and note, p. 539. Our statute of 1857 is quite as explicit. But all the authorities agree that she may make the contract, if it is specifically charged. And any such property is, under our statutes, the sole property of the wife.
Nor is there anything in the relation of husband- and wife to prevent the wife from becoming in any event a sole trader. And where she is a sole trader she possesses and may exercise the same right of buying and selling on credit, as well as for cash, that is possessed by any other person. By the custom of London, a wife might trade on her own account, and was subject alone for her debts, her husband not being liable: — Cro. Car. 68, 69. As a sole trader she was liable to bankruptcy proceedings, precisely like all other merchants: — 3 Burr. 1784; 1 W. Bl. 570.
So, by the general rules of equity, a wife might become a sole trader in pursuance of an ante-nuptial agreement, or a post nuptial agreement on a valuable consideration; and in either case she was protected against her husband
It is very evident, therefore, that there .is nothing in the relation of husband and wife which necessarily precludes a wife from transacting business on her own account, and for her own benefit. It is somewhat difficult to determine, from a system like that of the common law, what incidents were supposed to spring from the relation itself, and what from the rules of property. The husband’s dominion over the wife’s personalty, being absolute, would embrace her earnings, because it embraced everything. It is very clear that a husband had no right to hire out his wife’s services as he pleased, or to compel her to labor away from her home. The only services which he could assert a claim to, from the nature of the relation itself, are household duties, connected with the care of the home and family. These duties it is fair to attach to the marriage relation, as responsive to the duty the husband assumes of providing for and protecting his family. That a wife can not undertake any business which will prevent her performing these primary duties against her husband’s will, so long as he faithfully performs his corresponding duty, may be laid down as a general rule, and perhaps a rule which is universal. But beyond this it seems to me our statutes do not go in controlling her action concerning her own property. And this limitation, as we have already seen, is one which may be removed by her husband’s consent. No one else is concerned in it, and if he is willing no one else can complain.
If, as in the case before us, a wife owns a mill privilege, it must either be left entirely unproductive, or it must have a mill placed upon it. If she can not procure the erection of a mill upon it, then she c n not do as she would, were she unmarried, with the same property.
When the mill is finished she must either rent it or run it herself. Such property can not always be rented, and there is no legal incapacity to prevent her using it as other owners, whether men or single women, use their mills. If her husband is unwilling to allow her to attend to it personally, she can only do so as far as she does not omit her domestic duties. If it require more care she must employ some assistance. But should she neglect her home for her business, it is not easy to perceive in what way it concerns third persons. Neither would such a breach of duty render such property her husband’s. The law has provided for no escheat or forfeiture for such domestic faults. But with her husband’s consent there can be no difficulty. The ease does not differ from any other trading or business, except that what could formerly be done only indirectly, and through an equitable process, is now legal, and may be recognized and protected in all courts. Any attempt to lay down restrictions or qualifications becomes arbitrary, and beyond the judicial province.
If any agent is to be employed, it certainly will conduce ■more to harmony and domestic peace to allow the husband to act as such agent, if the wife sees fit to select him. There is certainly no recognized rule of law to prevent it. A married woman could formerly at law appoint no agent, and of course could not appoint her husband. The marital relation is no obstacle, for a husband could always appoint his wife to act for him, and each could deal with the other when acting in auter droit. By separating their legal
Unless there is an absolute and universal disqualification, then, there is no rule of law which will enable courts to discriminate between one agency and another.
That such a relation may afford means to conceal frauds is undeniable, but the law has never prohibited all acts which may facilitate fraud; and it will never presume either fraud or conspiracy; both of which must be> made out in order to. justify a conclusion against the honesty of such transactions.
It was suggested on the argument that it does not appear affirmatively that the property in this case was purchased with the means of the wife. There is an abundance of evidence that it was a part of the stock of a business Avhich had been carried on in her mill, and, nominally at least, as her business. Apart from this fact, the mere fact of possession by the husband would not make out a prima facie case on either side to determine his or her title. These circumstances were certainly admissible evidence, and had a legitimate bearing on the issue. Together with other facts they satisfied the jury. There is no ground on which we have a right to disregard their finding except that which is laid doAvn by the courts of Pennsylvania, in a series of cases referred to on the argument, that personal property claimed by a married woman shall be presumed to have been bought with her husband’s money, unless the contrary is proven beyond a reasonable d oubt. I know of no basis for any such doctrine. Under
Fraud, in such cases, is a question of fact, and not of law. I think in the case before us the Court below presented the whole case to the jury with great fairness. The peculiar character of the transaction was fully commented on, and their attention was called to every thing which could throw light on the case. Their verdict was not disturbed by the Circuit Court, and I have not been able to discover any legal ground for disturbing it. It is not claimed that 'if the business had been conducted by Mr. Allcott for a' brother, or a person not related to him, the case would not, under the charge given, have been fairly presented to the jury. The real facts are such as to require from a jury a much sharper scrutiny, and are much more suspicious, than if the married relation did not exist. This, however, was fairly laid before them, and we must presume their deliberate conclusion was arrived at by regarding it. Inasmuch, therefore, as I think there was no error in the charge of the Court, nor upon the trial, I am of opinion the judgment should be affirmed.
Judgment reversed.
Note —The names of O. S. May & Brigys as eouusel for defendant in error in this case were accidentally omitted from the proper place.