Miller v. Hollingsworth

36 Iowa 163 | Iowa | 1872

Cole, J.

— Giving to the averments of the petition, and especially the averment that the lumber was furnished and used in the improvement of the defendant’s rea.1 property *e with the full knowledge cmd acquiescence of the defendant,” & liberal construction, we hold that the demurrer should have been overruled. Full knowledge and acquiescence under such an interpretation would imply that the defendant knew the lumber was purchased by the husband without being paid for by him; that while it was so unpaid for, it was being used in the improvement of her real estate to the enhancement of its value, and that she acquiesced in such use with such full knowledge of those facts. It should also appear that it was not, in fact, sold to the husband in reliance upon his credit alone. In view of such facts and knowledge the defendant, upon the plainest principles of equity, ought to pay. That an adult male or feme sole would be bound to pay, under such circumstances, is not questioned. A wife being the owner of .separate property, under the liberal provisions of our statute, is equally bound by the same principles, provided it appears that she has full knowledge of all the facts, and fully acquiesces in' them, and in the appropriation of the property of another to the permanent enhancement of the value of her separate estate. Of course, her want of acquiescence might be manifested by fewer facts or slighter circumstances than would be required from an adult male owner. In other words, a court of equity will see to it, that while the wife in her condition of almost complete property enfranchisement, under our statutes, shall not, under color of a common-law technical rule, appropriate the property of another to her own use without compensation for it, yet it will also see to it that an improvident husband shall not incumber her estate without her knowledge, nor an imperious one incumber it without her full acquiescence. Thus guarded and administered, the rule, as here applied, will prevent the wife, under her greatly enlarged property rights, from perpetuating a legal fraud upon others, while it will also protect her from being the victim of such fraud. This precise point has never been directly decided by this court, but it has several times been referred to. See the following cases and the cases referred to therein. Greenough v. Wiggington and wife, 2 G. Greene, 435; Patton and wife v. Kinsman, 17 Iowa, 428; Jones v. Crosthwaite, id. 393, and McLaren v. Hall and wife, 26 id. 297. See, also, Miller v. Hollingsworth, 33 id. 224, which was an action to enforce a mechanics’ or material man’s lien for this same claim.

Reversed.