72 Mo. App. 390 | Mo. Ct. App. | 1897
“The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal, or mixed property which shall come to her by descent, devise, or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband, or liable for his debts.”
“A married woman, while the marriage relation subsists, may bargain, sell, and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property.”
. Under those sections it is clear that whatever property was bought with plaintiff’s money by plaintiff herself or by her husband as her agent remained her property. But if her money, with her consent, was used by her husband in purchasing articles of property (whether for the business of photography or for house
If the first one is true, and the property belonged to plaintiff when brought into this state, then the question presented in the trial court as to her being estopped from asserting her title by her acts in relation to the property presents itself. As before stated, the title to the property as between plaintiff and her husband was fixed in Kansas and is therefore not affected by the provision of our statute in relation to the possession of the husband. Story, Conflict of Laws, secs. 64, 66a, 186; Wharton, Conflict of Laws, sec. 191.
It does not appear whether any of the property in controversy was acquired after the removal of plaintiff and her husband into this state. If it was, then the rights of plaintiff and her husband would be governed by our statute. Wharton, Conflict of Laws, sec. 196; Story, Conflict of Laws, sec. 187.
It is perhaps true that the cases just cited fail to give the same effect to acts of a married woman as to matters of property between her and her husband that is ordinarily given in construing matters of estoppel where the peculiar relationship does not exist. And we think it may be well said, in support of those eases, that on account of the peculiar relationship existing between husband and wife she should not be held guilty of a failure to speak, or rather she should not be held responsible for a failure to speak, in instances where others would be held culpable if they did not give notice of their rights. And this view is supported by authority. Harris on Contracts of Married Women, secs. 527, 554. I am not unmindful .that it is sometimes said that as to her separate estate she will be looked upon as sui juris and subject to the ordinary rules of estoppel, but it will be noticed that in applying the facts in any given case the courts do have regard to her situation and relation with her husband.
But aside from any consideration of the leniency of the law concerning the conduct of a married woman relating to her property interests, there is no evidence in the cause to justify instructions on the theory of plaintiff’s being estopped by her conduct whereby defendants were induced to execute the lease retaining the lien clause. The law is clear that to establish ■estoppel in pais it must be shown the party against whom the estoppel is set up has been guilty of some
“Q. State what representations he made as to the goods — property, etc., he would bring here and putin the building! A. He told me he had photograph goods, camera, and other things; that he wanted to set up a first-class gallery and would.
“Q. State whether you would have entered into the lease if he hadn’t represented that he owned certain property! A. Of course not.
“Q, The understanding was that you were to have alien on all he put in the gallery — building! A. Yes, sir.”
When it is remembered that even that representation was made in the absence of plaintiff and without her knowledge, it will be seen that we did not characterize it too strong when we stated there was
2. If, therefore, the second of the above hypotheses is true, that is, that the wife’s money was used to buy this property in Kansas for the husband and the property was his, the plaintiff became his creditor and he had a right to prefer her by turning over the goods in controversy and she would hold them until her claim was paid in preference to other creditors, unless such other creditors obtained a valid lien thereon prior to being turned over to plaintiff.
Defendants claim this lien by reason of the lease, which was ‘ ‘for the term of five years beginning on the day when the rooms in said second story are ready for occupation and ending on the day five years thereafter ; ’ ’ and containing the following lien clause: 4 4All of their property situated on said premises, whether subject to legal exemption or not, shall be bound and subject to the payments of said rents and damages, and a lien thereon fot the payment of said rent and damages is hereby created.”
The lease in question might at first glance be taken to be uncertain as to commencement, since it is to begin “when the rooms are ready for occupation.” But it will be seen that notwithstanding this, the term of five years is certain and the commencement may be rendered certain. Corby v. McSpadden, supra; Murray v. Cherrington, 99 Mass. 229. In the latter case it was said that “the duration of a lease must be certain; this includes both its commencement and termination.” But “it may be conceded that a lease for years may begin 'when a house is suitable to be occupied,’ according to the maxim, Id cerium est quod cerium reddi potest.”
The result of the foregoing views is that the judgment should be reversed and the cause remanded.