Lyon v. Green Bay & Minnesota Railway Co.

42 Wis. 548 | Wis. | 1877

LyoN, J.

Upon the issue of title, this case, in all essential particulars, is like that of McVey v. The G. B. & Minn. R’y Co. [ante, p. 532], and is ruled by it. On the authority of that case it must be held that, as the proofs stand, the loeus in quo is the separate estate of the plaintiff. Being her separate estate, she may, although out of possession, maintain an action for any injury to the reversion.

But injury to the grass growing thereon (for which the damages were mainly, if not wholly assessed) is not an injury to the reversion; and, in order to recover therefor, it is incumbent on the plaintiff to show that she was in possession of the land upon which the injured crops grew; in other .words, that the crop belonged to her, and not to another. When she introduced her patent from the state, and thus proved that the premises were her separate estate, in the absence of further testimony, the presumption of law would be that she had the possession and was entitled to the crops. But there was further testimony concerning the possession and the right; and we are required to determine the effect of it.

. The proof is, that the plaintiff never had anything whatever to do with the premises, although she had owned them nearly sixteen years before this action' was brought. Her husband had the whole charge of them, and the evidence tends strongly to prove that he received the proceeds of the land and crops as his own; for he constantly speaks of the damages for the alleged injury to the crops as “my damage.” There is no evidence that the plaintiff ever gave a direction concerning the land, or ever received to her separate use, or claimed, any of the income of it, or ever asserted any possess-ory rights in it; but all reasonable inferences from the testimony are directly the reverse. True, the husband says he acted as tbe agent of bis wife; bnthe does not say that she ever appointed him her agent, or requested him to act for her; and there is much reason to believe that she never did so. It is apparent that the husband’s testimony as to the agency (no doubt honestly given) was based upon what he thought was the legal relation he sustained to his wife in respect to her land, rather than upon any actual arrangement between them.

Unless the plaintiff can compel her husband to account to her for the income of the land received by him during the years in question (1872-4), she cannot recover in this action. This is the true test of her right. If the husband, who has received the crops or the income of the land, can hold the same as against the plaintiff, it is clear that in an action for injuries to such crops, the husband, and not the wife, must be the plaintiff.

"We understand it to be well settled, that a wife who permits her husband, without objection, for a long series of years, to receive and appropriate to his own use, or to their joint use, the income of her separate estate, cannot compel him to account to her therefor until such permission is revoked by her, and then only from the time of such revocation. A different rule might give the opportunity to mislead persons dealing with the husband, and thus open a door to fraud.

In a well considered opinion by Chancellor Cooper, in the late case of Lishey v. Lishey, in the chancery court of Tennessee, 2 Tenn. Ch. R., 5, the rule is so well stated that we cannot do better than to extract at some length from .the opinion. After quoting from Lord Macclesfield in Lowell v. Hankey, 2 P. W., 82, and from Lord Hardwicke in Ridout v. Lewis, 1 Atk., 269, the chancellor says: “The weight of authority, in accordance with these rulings, undoubtedly is, that, if the husband and wife, living together, have for a long time so dealt with the separate income of the wife as to show that they must have agreed that it should come to the bands of the husband to be used by him (of course for tbeir joint purposes), that would amount to evidence of a direction on her part that the separate income, which she otherwise would be entitled to, should be received by him. And this, if the husband be himself trustee. Caton v. Rideout, 1 Mac. & G., 599. The wife’s consent to the husband’s receipt of the income de anno in amt/um is presumed, and that such consent continues until revoked by something expressed or fairly implied. Squire v. Dean, 4 Bro. C. C., 326; Smith v. Lord Camelford, 2 Ves. Jr., 716; Milnes v. Busk, id., 496; Dalbiac v. Dalbiac, 16 id., 126; Bartlett v. Gillard, 3 Russ., 155; Buckeridge v. Glasee, Cr. & Ph., 137; Beresford v. Archbishop of Armagh, 13 Sim., 643; Payne v. Little, 26 Beav., 1; Gardner v. Gardner, 1 Giff., 126; Kelly v. Dawson, 2 Mol., 87; Methodist Episcopal Church v. Jacques, 3 Johns. Ch., 79.” The quotation from Lord ITardwioKE is as follows: “ I allow that it is a general rule, where a wife accepts a payment, short of what she is entitled to, or lets the husband receive what she has a right to receive to her separate use, it implies a consent in the wife to .submit to such a method, where the husband and wife have cohabited together for any time after.” Many of the cases cited by Chancellor Cooper have been examined, and it is believed they sustain the doctrine laid down by him.

As already observed, the undisputed evidence in the present case, and the reasonable inferences therefrom, tend strongly to the conclusion that the plaintiff, without objection, permitted her husband, for many years, to control the land and to receive and appropriate as his own the income of it. Within the rule above stated, if she did so, she foreclosed her right to an account for the crops grown upon it, and, as a necessary result, she also foreclosed her right to maintain an action for injuries to such crops.

We conclude, therefore, that the case is within the rule, and that, as the evidence now stands, the action for injuries to the crops belongs to tbe busband and not to the wife. Another trial may, however, develop a different state of facts.

There are several exceptions in the record which present this point for determination. Among these is an exception to the refusal of the court to instruct the jury that “possession of the premises is not to be presumed to be in the plaintiff from the mere fact that the patent was issued to her.” There are many other exceptions in the record bearing upon this and other points; but it is unnecessary to notice them.

By the Gov/rt. — Judgment reversed, and cause remanded for a new trial.