19 Wash. 544 | Wash. | 1898
The opinion of the court was delivered by
The object of this action is to cancel a deed of conveyance executed by Herman Loewenberg, Bernhard Loewenberg and the plaintiff, Harriet Loewenberg, to James 1ST. Glover, as trustee, in so far as it purports to convey certain property described in the complaint, which is claimed by plaintiff in her own right, as her separate property. The decree of the lower court was in favor of plaintiff, and certain of the defendants have appealed therefrom. The undisputed facts in the case show that in the year 1889 the plaintiff, at that time and at all times since, the wife of Bernhard Loewenberg, purchased in her own right and with her separate funds the property involved
“ then and there agreed with the said Bernard Loewenberg that if said property was placed in said trust deed it would, ■as soon as tbe trust was administered, be reconveyed to bis wife, tbe plaintiff, and that in tbe meantime it would be protected from question and attachment by other creditors, and that bis brother, Julius Loewenberg, would have the principal control of tbe execution of said trust, and that be could safely rely upon bis brother carrying out such ■agreement and protecting tbe property of bis said wife.”
Counsel for the appellants vigorously assail the complaint, claiming that it states no cause of action in that it does not charge that the defendants or any of them perpetrated or had any knowledge of the fraud practiced upon the plaintiff by her husband; that none of the defendants made any misrepresentation to or in anywise deceived her; and that, while it charges that the plaintiff received no consideration, it does not allege that the defendants paid none. Counsel for the appellants throughout their entire brief seem to assume that the husband was the agent of the wife, with full power to contract concerning her separate real estate. There is not a particle of proof in the records which tends in anywise to show that Bernhard Loewenberg was the attorney in fact, or agent, or had any authority whatever, to make any contract or agreement with reference to his wife’s separate real property. This assumption constitutes the fundamental error of appellants’ position. While it is doubtless true that, in certain states which have the community system, the husband is the managing agent of both the community
“ The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise, or inheritance, with the rents, issues and profits threof, shall not be subject to the debts or contracts-of her husband, and she may manage, lease, sell, convey, encumber, or devise by will such property, to the same extent and in the same manner that her husband can, property belonging to him.”
Under our law, the husband has not the management of,, and has no control whatever over, the separate real property of his wife. The respondent testified that she did not know that the deed contained any description of her separate property; that she was informed by her husband that it did not, and was not advised of the truth until some-three weeks after it had been executed, when she at once-went to Colonel Hash and demanded that her property bereeonveyed to her. i At that time, and for a long time thereafter, litigation was pending between other of the firm’s: creditors and the defendants here, growing out of the transfer to the defendants of all of the property of the-firm.
The evidence is sufficient to satisfy us that respondent-postponed commencing her action in the hope, and we think she was encouraged to believe, that when the litigation was terminated and the trust administered her property would be reconveyed. It is not contended that the-surrender of the firm obligations was in anywise made to depend on whether this property went into the deed. Mr. Gearin, the sole witness for the defendant, testified that he did not ask that it should be put in; did not know
From all of the circumstances, it appears that the husband conceived the idea of putting this property into the deed in order to avoid any claim to, or litigation over, it by hostile creditors whose claims were not provided for; that he fully expected it would be reconveyed when the litigation terminated; and that he concealed from his wife the fact that it was included, in order to avoid any possible delay or refusal upon her part to execute the deed, desiring, no doubt, to spare her any anxiety concerning its safety and, manlike, deeming himself the best judge of what was for her interest. It is enough, we think, to sustain the decree of the lower court, that there was no- consideration for the conveyance of this property, and that plaintiff did not know and, under the circumstances, was excusable for not knowing, that the deed included the property in question. Ho question arises here as to the rights of third parties. If it became necessary to determine the question, we would, upon this record, be constrained to hold that the husband became the agent of the defendants for the purpose of securing plaintiff’s signature to this deed, and that his representations and concealments were binding upon them. As already observed, she was never a party to the negotiations nor financially interested in them, no representations had been made to her nor had any promises been given by her, and, without prolonging the discussion further, we think the decree of the superior court was right, and it is affirmed.
Dunbar, Anders and Rea vis, JJ., concur.