Hanson v. Millett, 55 Me. 184

Hanson v. Millett

55 Me. 184 | Me. | 1867

Dickerson, J.

Replevin for a colt. Trial by the presiding Judge, and exceptions to his findings in matters of law, and to his exclusion of evidence.

The brief statement denied property in the plaintiff, and alleged it to be in one George S. Hanson.

The presiding Judge found, as matter of fact, that, when the plaintiff married Jesse Hanson, father of said George S., she owned the mother of the colt, and that the colt was foaled after said intermarriage. He also held, as matter of law, that the colt in dispute, being the increase of the plain*189tiff’s property, belongs to her. While the findings of the presiding Judge are conclusive in respect to the facts, they are subject to revision by the law court in matters of law.

It appears from the findings of the Court on the facts, that, after the plaintiff’s marriage, she lived with her husband upon his farm, and that she also owned a farm near by which was carried on by him, and that the mother of the colt, with other stock, owned respectively by herself and her husband, and the colt itself, were kept indiscriminately upon the joint products of both farms.

By the laws of this State, a woman having personal property loses no part of it by marriage; nor does her husband acquire any right to control it by virtue of the marriage relation. The right of the wife to possess, enjoy'and dispose of such property remains , as full and complete after, as it was before the marriage; and she has the same power to employ her husband or other person, to manage it, that any other owner of property has, who is not under the disabilities of coverture. Whether such property consist of household furniture, kept in her husband’s house, or of stock kept on his farm, the wife is deemed'to be in possession of it, in the same manner that the husband is in possession of his property kept in the same way. Knapp v. Smith, 27 N. Y., 227; Allen v. Cowen, 23 N. Y., 505.

The husband of the plaintiff, therefore, acquired no property in the mother of the colt in dispute, by virtue of the marriage; and the plaintiff, having both the ownership and the possession of her, is entitled to the increase, upon principles of law too familiar to render the citation of authorities necessary.

The defendant undertakes to show title to the colt in George S. Hanson, by gift from the plaintiff, and the burden is upon him to prove this, the presumption of ownership, when once established, continuing until alienation is shown. A delivery is indispensable to the validity of a gift of this sort.

According to the finding of the presiding Judge, the colt *190was kept upon the samo farm and in the same manner as its mother; and, although it was called George’s colt by the plaintiff and in the family, and he usually took care of it, and drove it, yet there is no such distinct act of parting with the possession as authorizes the Court to infer a delivery to him in the capacity of owner.

The declarations of Jesse Hanson in relation to the ownership of the colt are no part of the res gestae. He was not the owner of the mare or the colt. His declarations could not bind the true-owner, and were properly excluded.

Exceptions overruled.

Appleton, O. J., Walton, Danporth and Taplet, JJ., concurred.