56 Miss. 318 | Miss. | 1879
delivered the opinion of the court.
Mrs. Bettie Gray brought this action of replevin to recover the possession from Levy, trustee of Stern, Levy & Co., of two bales of cotton and a mule, which had by said trustee been taken under the provisions of a trust deed executed by the husband of said Bettie.
The court below refused to chai’ge the jury, at the instance of defendant, that plaintiif could not recover the cotton if they believed her claim to be fraudulent. This refusal, it is said, was justifiable, because there was no testimony tending to show a fraudulent claim on her part, and none, therefore, to which the charge was applicable.
We cannot adopt this view. While perhaps most of the testimony adduced was in support of the boná ftdes of the claim, there was some (we refer especially to that delivered by the witness Abner Gray) which tended to show that it was fraudulent. This portion of defendant’s charge, therefore, should have been given.
The mule was clearly shown to be the property of plaintiif, Bettie Gray, but it had been mortgaged by her husband; and there was testimony to the effect that the wife was present when the mortgage was executed on the mule and the crops; that the same was read to her, and she was asked to-sign it, and that she declined to sign, because, as she said,, “she was sickly, and did not expect to work in the crop,”— thereby acquiescing in it, so far as the mule was concerned, and giving no notice of any claim on her part as to it; that she on that day took up goods on the faith of the mortgage, and continued so to do during the year; that ever since she had owned the mule her husband had been in the habit of mortgaging it in his own name, with her knowledge, for supplies; that she had given no notice to any one of her title to the animal, until the bringing of this suit; that the mortgagees had no. knowledge of such title, and, in taking the security, acted upon the statement of the husband, in her presence, that he owned the animal.
There are no restrictions, by our statute, upon the power of a married woman to dispose of her separate personal property ; and she will be held, when of full age, estopped to reclaim it when by her silence, at a time when she was called upon to speak, she has induced others to act upon the belief, thereby engendered, that it does not belong to her. This principle was distinctly announced in Upham v. Gibson, 53 Miss. 341, in which case we failed to apply it because of the minority of Mrs. Upham. If minority existed in this case, it should have been shown. Bettie Gray sues in her own name, and neither her husband nor a jgrochein ami is joined. The presumption is that she is of full age. Infants, even, are frequently estopped in equity, at least from the perpetration of frauds. Ferguson v. Bobo, 54 Miss. 121.
The instruction asked by defendant should have been given, and the fourth instruction given for plaintiff should have been refused.
Judgment reversed and cause remanded.