45 Wis. 484 | Wis. | 1878
I. Were it necessary to determine whether, in a controversy between the plaintiff and his wife, the conveyance or transfer by him to her of the property in question is valid, and vested in her the title to such property, the rule of law which would control might readily he found in Putnam v. Bicknell, 18 Wis., 333, and in the authorities and cases there cited. But it is not thought necessary to determine that question in this action.
The plaintiff, in form at least, conveyed the property in controversy to his wife. He thereby conferred upon her the apparent evidence that she was the owner, and thus held her out to others as the owner of. the property. On the faith of such
A man cannot be allowed thus to deal with his property to the injury of others. If (as in this case) he executes a formal transfer and conveyance of his property to another, and the transferee, holding the most ample evidence of ownership, obtains on the faith thereof the money or services of a third person and pledges the property as security therefor, it would be most unjust to permit the former to assert that his conveyance is invalid,because made to his wife, and thus deprive the pledgee of his security. It is to prevent just such wrongs that the rule of estoppel is constantly applied and enforced by the courts.
If A holds out to the public that B is his partner or agent, or the owner of certain property, when in fact he is not, and 0 in good faith deals with B as such, the rule is elementary that, in a controversy between A and 0 involving the validity of such dealing, A is estopped to deny that B is his partner or agent, or the owner of the property, as the case may be. The present case seems a very proper one for the application of the rule.
But it may be said that Mr. Turner knew the character of the transaction between the plaintiff and his wife, and if the agreement between them is invalid as a conveyance of the property, he is chargeable with notice of the fact; and hence, that he is not a purchaser or mortgagee in good faith. Concede this for the sake of the argument: still we think it must be held that the plaintiff conferred upon his wife ample authority to deal with the property as her own, and cannot be heard in this action to deny such authority.
III. It remains to determine whether the pleadings and proofs support the judgment for the defendant for the value of the property in controversy. The answer sets up Turner’s mortgage interest, and the averment, as we have seen, is supported by the evidence. Had the defendant (who represents Turner) claimed in his answer a return of the property, he would have been entitled to judgment for a return thereof. Not claiming a return of the property, he is entitled to j udgment for its value. It was so ruled in The Farmers’ Loan & Trust Co. v. The Commercial Bank, 15 Wis., 424, which followed and affirmed Pratt v. Donovan, 10 id., 378. These cases are to the effect that a defendant in replevin has an option to go for a return of the property or for its value, and he exercises that option when he answers. If in his answer he claims a return, and prevails in the action on grounds which entitle him thereto, the judgment is for a return; but if he does not thus claim a return, and prevails on the same grounds, judg
The question of the right of the defendant to judgment for the value of the property, in a case like this, is so fully discussed in the cases above cited that further discussion here is entirely unnecessary.
IY. Judgment was rendered against the plaintiff’s surety in the undertaking to obtain delivery of the property, as well as against the plaintiff. The validity of the statute (R. S.,.ch. 140, sec. 51) pursuant to which the judgment was so rendered, was affirmed in Pratt v. Donovan, supra, and the point must be considered as settled.
"We find no error disclosed in the record, and must therefore affirm the judgment of the circuit court.
BytheOourt. — -Judgment affirmed.