H. W. Wright Lumber Co. v. McCord

| Wis. | Feb 21, 1911

The following opinion was filed December 6, 1910:

WiNsnow, O. J.

It is claimed by respondent that the parcels of land in question were -either contributed by Mc-Oord to the capital of the firm of McCord & Wright or were purchased with partnership funds, and in either case became partnership property and not the subject of dower until all of the debts of the firm had been paid. The further claim is made that two of the parcels at least were necessarily used and absorbed for the purpose of paying such debts, and hence that the defendant can claim no dower in them.

We do not find it necessary to decide these questions. We shall assume for the purposes of the case that the defendant at one time had an inchoate right of dower in all of the lands in question and that she still retains it unless by her silence she has estopped herself from making the claim.

This court, in common with the majority of courts in this country, has long since abandoned the ancient rule that the doctrine of equitable estoppel has no application to married women. Our statutes have endowed married women with very full and complete rights, not only as to their separate property, but also as to their liberty of conduct, and have given them practically perfect freedom to deal with property, to contract for their personal services, to conduct their separate business, to bring suits for the enforcement of their rights, and generally to control their own actions without let or hindrance from their husbands. With these rights necessarily come some added responsibilities. Privilege and opportunity always bring with them corresponding duties. When á woman’s personality was considered to be submerged in that of lier husband, it might well be held that she should be held to be under no responsibility for her acts; but when she stands on a level with her husband and becomes practically master of her own property and destiny, it seems plain that she must logically be charged with the duties .and responsibilities which attend every other free and indejsendent personality in its dealings with its peers. 2 Pomeroy, Eq. Jur. (3d ed.) § 814.

The rule is correctly stated by this court in Godfrey v. Thornton, 46 Wis. 677" court="Wis." date_filed="1879-01-15" href="https://app.midpage.ai/document/godfrey-v-thornton-6602861?utm_source=webapp" opinion_id="6602861">46 Wis. 677 (1 N. W. 362), at page 690, as follows : “Whatever may be the rule concerning the formalities needed to bind married women, there is no doubt they may be estopped by their deliberate conduct as well as any one else.” This rule was in effect applied by this court in the cases of Nelson v. McDonald, 80 Wis. 605" court="Wis." date_filed="1891-12-15" href="https://app.midpage.ai/document/nelson-v-mcdonald-8183820?utm_source=webapp" opinion_id="8183820">80 Wis. 605, 50 N. W. 893; S. D. Seavey Co. v. Campbell, 115 Wis. 603" court="Wis." date_filed="1902-11-28" href="https://app.midpage.ai/document/s-d-seavey-co-v-campbell-8187439?utm_source=webapp" opinion_id="8187439">115 Wis. 603, 91 N. W. 655; and Morrell v. Purdy, 129 Wis. 331" court="Wis." date_filed="1906-10-09" href="https://app.midpage.ai/document/merrell-v-purdy-8188578?utm_source=webapp" opinion_id="8188578">129 Wis. 331, 109 N. W. 82.

One of the most frequent instances of equitable estoppel is the estoppel by silence. Quoting from 2 Herman on Es-toppel (§ 937, p. 1062), “lie who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to keep silent;” or to express the principle more concretely, “A party who culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute the fact in an action against the person whom he has thus assisted in deceiving.” Id. § 943, p. 1069.

The question in this case is, Did Mrs. McCord culpably stand by, knowing that she was the lawful wife, and allow people to deal with Mr. McCord and purchase land of him in the innocent belief that Miss Space was his lawful wife ? That she stood silently by for years and knowingly allowed McCord to hold out to the world at large that Miss Space was his lawful wife, there can be no doubt. She admits this herself. That she knew he was transacting business with others, and business of some considerable proportions, there can be no doubt. She knew by her own admission that a wife was obliged to sign her husband’s deeds of land. She had clone it many times herself while they were living together, and she admits that she signed the’deeds to some lands in Shawano a few years after McCord’s second marriage, bo-ca use the purchaser did not want to take the deeds without her signature. It seems very certain that she must have known that there were undoubtedly other transfers of land lik ly at any time to be made by her husband to which her signature must be necessary if she was still his lawful wife. Che knew also of the public marriage of McCord, of the ap-pnri nt acceptance by the people of Merrill of its validity, and she must have known that whenever he made a transfer ■of land, save in the one instance above cited, the second wife was undoubtedly signing the deed as the lawful wife and that such signature was being accepted as such by purchasers. All these conclusions seems to us as necessarily resulting from the evidence. The defendant was distant but a few hours’ ride from her husband’s residence. If the second marriage was a bigamous marriage to her knowledge, a mere notice in the newspaper or a’ letter to a friend at Merrill would have apprised the world of the fact and put people dealing with Mr. McCord .on their guard. But such a warning never came. She deliberately and consistently held her peace, and the public accepted the situation, supposed that McCord had been divorced and had lawfully remarried, and dealt with' him and his apparent wife just as they dealt with other men and women living together in the ordinary manner as husband and wife and reputed to have been legally married.

This state of things had existed some five years when Mr. McCord sold and transferred an undivided half of the premises to Mr. Wright, who was found upon sufficient evidence to be an innocent purchaser. A year or so later McCord, upon the dissolution of the copartnership, deeded the other half of the premises to Mr. Wright, his second wife joining in both deeds. It appears by the evidence that during the same time McCord had platted a considerable tract of land in Merrill into lots and blocks and sold the same to various purchasers for building purposes, and that in all such cases the deeds had been signed by the second wife and accepted by the purchasers as perfect conveyances. This fact, of course, cuts no figure except in the way of emphasizing the extent and publicity of McCord’s business transactions and the importance of the present case.

We cannot resist the conclusion from these facts that it was the defendant’s plain duty to speak if she in fact knew or ought reasonably to have known the fact that there was no valid divorce, and this brings us to the most delicate question in the case. There was in fact no valid divorce, and no proof was attempted to' be made of even a formal divorce in any court or any state. Whether the newspaper notice to which the defendant testifies' and the paper which McCord after-wards threw in her lap- really emanated from any court in Utah or elsewhere does not appear. There were certainly no proceedings in Wisconsin, and both parties continuously resided in Wisconsin, so it is clear that no 'decree of any court in Utah could have any validity. Now it is claimed by the defendant that she believed that the supposed divorce was a valid divorce and hence that she cannot be charged with the duty of proclaiming it invalid. If she believed it valid and her ignorance of its invalidity was not culpable under the circumstances, this conclusion is doubtless correct; but did she believe it to be valid ? In the first place, it is worthy of remark that if she was ignorant her ignorance was largely wilful and deliberate. The evidence shows that she paid no attention to the summons in the newspaper; she did not preserve or even examine the paper which McCord gave her and called a divorce; she made no inquiries, asked no questions, took no advice; but on her own statement acquiesced without a struggle or a -word in a decree which separated her forever from the husband of her youth and the father of her children, though confessedly she had been a faithful wife and given her husband no cause for complaint. Apparently she deliberately determined to let her husband go without objection, whatever the nature of the supposed divorce proceedings might be. But it is very certain from the evidence that she thought the divorce invalid from the very start. She herself testifies that she felt the divorce was not legal, that it seemed to her that he had no right to marry any one else, and that her relatives knew that she thought the divorce was not legal. There is also evidence by other parties that she so stated at the time. This is partially explained or modified by other testimony given by her to the effect that she didn’t know but what his divorce was legal, and that she thought he wasn’t a man who would marry again so openly unless there was something in the divorce. If the testimony ended here it might be difficult to' say that a woman unlearned in the law should be held to be charged with knowledge of the invalidity of the supposed divorce, but there is other testimony quoted at length in the statement of facts which seems to us quite conclusive. In this'testimony she practically says that the only reason why she didn’t make him trouble and insist on her rights was because “he didn’t like the thing to be made public; he wished I wouldn’t do anything; he might be arrested, in prison, and didn’t want anything like that to happen ; didn’t want me to stir up scandal or” disgrace our children.” No inference is possible from this testimony except the inference that McCord admitted to her that there was no valid divorce and threw himself upon her mercy. In addition to this, the testimony of the daughter of the parties, who was about thirteen years old and living with her mother at the time of the separation, is very significant, as follows:

“I never for a moment thought that my father had a divorce that could be legal. . . . The common understanding at Shawano was that my father was not divorced; I don’t know as my mother knew of that common understanding. She never thought he was herself, probably. I don’t know what she thought. I don’t know that she ever told us anything about it; we may have simply talked it as a matter of course, and there was very little said.”

The same witness was later asked, “Do you know why your mother made no objection to the second marriage ?” and replied, “Well, she didn’t do it on account of her family principally — 'not of that temperament. . . . She didn’t care to have any more publicity.” Again, the same witness said, when asked when she first learned the facts that made her ■think her father’s marriage to Miss Space was not legal,. “I knew it always as well as I was convinced in my own mind.”

This testimony of both mother and daughter bears every impress of truth. Eully convinced of the outrage that had been done to her as a wife and that she could send her husband to prison for it, she yet determined for the sake of her family to bear the burden in silence and make no complaint. It was one of those acts of self-denial which women are frequently doing for the sake of others who are dear to them. If McCord himself, the principal offender, could be made to bear the consequences, and make good to the defendant as far as money can make good, for her sufferings and humiliation, exact justice would be done, but this is impossible. The claim here is against people innocent of wrong themselves, who have dealt with McCord with the honest belief that his marriage to Miss Space was legal. The question is one which is always difficult and sometimes distressing, namely, which of two absolutely innocent parties shall suffer ?

It appearing to us clearly that Mrs. McOord was convinced from the beginning of the invalidity of the supposed divorce, we think that the well understood principles of estoppel must be held to apply. Knowing that her husband had publicly married another woman, was proclaiming her as his wife, was transacting business every day with people who supposed the second marriage was legal and valid, she allowed this state of affairs to continue without a word of protest. It seems to us she should then have spoken if she would deal fairly with her fellowmen.

There are authorities which hold that a woman will not estop herself from claiming dower hy silence under circumstances somewhat similar to those present here. Among such authorities are Martin’s Heirs v. Martin, 22 Ala. 86" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/martins-heirs-v-martin-6504986?utm_source=webapp" opinion_id="6504986">22 Ala. 86; Reel v. Elder, 62 Pa. St. 308; Cruize v. Billmire, 69 Iowa, 397" court="Iowa" date_filed="1886-06-23" href="https://app.midpage.ai/document/cruize-v-billmire-7102208?utm_source=webapp" opinion_id="7102208">69 Iowa, 397, 28 N. W. 657; and Cazier v. Hinchey, 143 Mo. 203" court="Mo." date_filed="1898-03-08" href="https://app.midpage.ai/document/cazier-v-hinchey-8012764?utm_source=webapp" opinion_id="8012764">143 Mo. 203, 44 S. W. 1052.

The greatér weight of recent authority, however, supports the position here taken. De France v. Johnson, 26 F. 891" court="None" date_filed="1886-04-15" href="https://app.midpage.ai/document/de-france-v-johnson-8310549?utm_source=webapp" opinion_id="8310549">26 Fed. 891; Norton v. Tufts, 19 Utah, 470" court="Utah" date_filed="1899-05-25" href="https://app.midpage.ai/document/norton-v-tufts-8654344?utm_source=webapp" opinion_id="8654344">19 Utah, 470, 57 Pac. 409; Hoig v. Gordon, 17 Grant Ch. (Up. Can.) 599; Nuhn v. Miller, 5 Wash. 405" court="Wash." date_filed="1892-12-17" href="https://app.midpage.ai/document/nuhn-v-miller-4728565?utm_source=webapp" opinion_id="4728565">5 Wash. 405, 31 Pac. 1031, 34 Pao. 152; Sadler v. Niesz, 5 Wash. 182" court="Wash." date_filed="1892-11-17" href="https://app.midpage.ai/document/sadler-v-niesz-4728505?utm_source=webapp" opinion_id="4728505">5 Wash. 182, 31 Pac. 630, 1030; Gilbert v. Reynolds, 51 Ill. 513" court="Ill." date_filed="1869-09-15" href="https://app.midpage.ai/document/gilbert-v-reynolds-6953677?utm_source=webapp" opinion_id="6953677">51 Ill. 513 ; Brown v. Kerns, 6 Ohio N. P. 68.

It follows that the judgment below was right and must he affirmed.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied February 21, 1911.