48 P. 214 | Ariz. | 1897
(after stating the facts).—Appellants contend that it was proved that M. Y. Warren, after his marriage, in the exercise of his marital rights under the common law,
At common law, the receipt of a wife’s personalty did not of itself make it the property of the husband, unless it was received by him, in the exercise of his marital rights, for the purpose of its appropriation to his own use. Such right could be enforced or waived at the husband’s pleasure. If waived, the personalty remained the property of the wife. 1 Bishop on Married Women, par. 119; Hall v. Young, 37 N. H. 134 et seq. We think the court below, from the evidence in the case, was clearly authorized in holding that Warren never did take possession of his wife’s personal property by virtue of his marital rights. The evidence shows that they always considered it the property of Mrs. Warren. It was treated as such in 1883 and in 1887, when Mrs. Warren received the notes; and this court cannot disturb the finding of the court that there was no fraud in her receiving the notes, especially as we are unable to find- any evidence showing fraud either on the part of Warren or his wife. If she had been a creditor (which question is not in this ease), he would have had the right to prefer her to other creditors, no fraud appearing. If her personal property had been converted by virtue of the marital rights of some common-law jurisdiction, there appears no reason why, no intervening rights of creditors appearing, and no fraud of any kind being proved, he could not have restored her property at any time. Fraud is a question of fact, under the code of this territory, and also under the statutes of Colorado, and proof necessary to establish the same must be clear and conclusive. We find no such degree of evidence in the record, and, with the witnesses before the court below, it was its. province to pass upon all questions of
It is also claimed that if L. E. Warren had any claim to the personalty and other property, she permitted her husband to appear and hold out that he was the owner, with full power of disposition of the same; and that as Hall Bros, had no knowledge that she claimed or owned said property, and gave large credit to M. V. Warren in pursuance thereof, the property handled by M. Y. Warren is subject to sale, to satisfy Warren’s judgment to appellants, whether now in his possession or that of his wife, L. E. Warren. This might be true under certain circumstances, but the facts in this case do not apply. Hall seems to have known that the Warren cattle had been sold .when he made the agreement with Warren & Howard, at Dodge City. The Warrens had sold their cattle in 1883. Warren & Howard had in 1884 assumed payment of certain notes of Hall Bros, to Wilcox. These notes were secured by a lien on the Hall Bros.’ interest in the Wilcox or Trinidad Cattle Company’s herd, and Hall appears to have thought the cattle were good for the amount. It is true they secured a note of Warren for twenty-six hundréd dollars, and to that extent gave him credit; but this was paid by Warren, and he also paid cash, amounting, with the note, to one half of the interest purchased by him and Howard. He was held liable on this contract, which was held to be joint, for Howard’s part also. This is not a sufficient cause for a coürt of equity to subject the property of Mrs. Warren to the satisfaction of such an obligation. Mrs. Warren does not appear to have led Hall Bros, to believe that Warren was the owner of the cattle sold prior to the Hall trade. The doctrine of estoppel is well stated in a similar ease in De Berry v. Wheeler, 128 Mo. 84, 49 Am. St. Rep. 538, 30 S. W. 339 et seq.: “The question, then, is whether the wife, by permitting the husband to hold the title to her land, by recorded deed, in his own name, would, without other act or representation on her part, be estopped to deny the title as against plaintiff, who, without her knowledge, gave credit to the husband upon the faith of his ownership as it appeared of record. Equitable estoppel arises ‘when one, by his words or conduct, willfully causes another to believe in the existence of a certain state of .things, and induces him to act on that belief, so as to alter his
This was strictly an action at law, and we have gone into the ease, not from any fault with the Colorado judgment, but simply to find out if any equities have arisen therein in favor of Hall Bros, against L. E. Warren. The court below was fully warranted in finding none. She was guilty of no fraudulent representations. She did not withhold the truth when
Bethune, J., and Rouse, J., concur.