Musser v. Gardner, 66 Pa. 242

Musser v. Gardner

66 Pa. 242 | Pa. | 1870

The opinion of the court was delivered, January 3d 1871, by

Thompson, C. J.

— There is nothing in the first and second assignments of error which needs discussion. Wé are to presume there was sufficient before the court to justify it in allowing the amendment of the records by striking out the name of William Gardner as a plaintiff. It was proper that it should be so done. Mrs. Gardner, the meritorious plaintiff, was entitled to sue in her own name, for her own property, as she had been declared by a decree of the court, made more than two years before, to be a feme sole trader, according to Act of Assembly, by reason of her hushand’s desertion. Even without this, she could have maintained her action without joining her husband, under the 3d section of the Act of 11th April, 1856, because of the desertion and neglect of maintenance by him: Black v. Tricker, 9 P. F. Smith 13. This abundantly appears in the testimony. He was a vagrant and fugitive from justice long before and at the time of trial. It would have been folly, therefore, on part of the plaintiff, to permit his name to remain as a party plaintiff on record, and thus enable him to steal back and relieve or satisfy the judgment she might receive and pocket the proceeds. The court saw the position and properly allowed the amendment. If it was right to allow the amendment, it was not error to do so in the absence of an affidavit of mistake: Rangier v. Hummell, 1 Wright 130 ; Wilson v. Mechanics’ Bank, 9 Id. 497. These assignments of error are not sustained.

2. Nor was there error' in sustaining the offer of Gardner’s declarations that he was not the owner of the property, and that it belonged to his wife. If it was his, it must have become so by gift of the wife or such a permissive- use of it as that ownership might be presumed. His declarations that he was not owner was important proof to negative the idea of - a gift or transmission of title by his wife to him in any way. . This was manifestly quite a different thing from attempting to invest a wife with title by the husband’s declarations. The case of Bachman v. Killinger, 5 P. F. Smith 414, sustains the ruling of the court below on this question, instead of the contrary, as the counsel for plaintiff in error seems to -have supposed. Nor do the cases of Parven v. Capewell, 9 Wright 89; Walker v. Reamy, 12 Casey 410, or Gamber v. Gamber, 6 Harris 363, at all impugn the accuracy of the learned judge in admitting the evidence. They establish the *247inadmissibility of a husband’s declarations to vest title in a wife of property formerly his own as against creditors. Here the declarations were consistent with the state of the title, and essentially denied the ownership of it by gift or contract from the wife, or that he had acquired it by any labor or management of the farm of his wife. This was important testimony, bearing on his subsequent attempted transfer to the defendant and others. I see not how the defendants could object to his acts and declarations before sale. But this, even if doubtful, was cured by the defendant resorting to declarations the other way throughout his whole case. It seems to me the admission or declarations of the husband in this peculiar case, where the title of the farm was well known to be in the plaintiff and the personal property presumably so, is fully sustained by the law: 1 Greenl. Ev. § 190; Gibblehouse v. Strong, 3 R. 437; Johnston v. Johnston’s Admrs., 7 Casey 450, Bergy’s Appeal, 10 P. F. Smith 408.

3. The matter of the 4th assignment- is unintelligible, as it appears in the paper-book of the plaintiff in error, and we cannot notice it. We are not allowed to conjecture in order to help the record, and without we might so indulge, we can make nothing of this error. It is, therefore, not sustained.

4. We think it was not error to admit the’plaintiff to testify in her own case under the Act of Assembly. She was on record as a feme sole, so far as the right of action was concerned, and her testimony went only to sustain title to the property in question. The husband was no party, and that he might possibly be called - on at some time or other to answer on an implied warranty of title to the property he had sold and now claimed by the wife, was too remote and contingent to bring her within the prohibition of the statute from testifying against her husband. In fact, a decision in this issue in her favor would by no means be necessarily conclusive in a contest between her husband and the defendant on the implied warranty. Peradventure it might be shown in that action that the plaintiff took upon himself the risk of the title— that the plaintiff was properly a witness under the Act of Assembly.

5. In the answers of the court to the plaintiff’s and defendant’s points, and that portion of the general charge, we discover no error; certainly none of which the defendant below had any right to complain. The answer to the defendant’s first point, which is assigned for error, we think was as favorable to him as he had any right to expect. It was left to the jury to say, under the evidence, whether the management of the plaintiff’s farm had been such, and so long continued as to raise a presumption of ownership, or a right to sell the personal property on it. -They were, therefore, at liberty to find for the defendant if they found either contingency in the affirmative. The case of Rush v. Vought, 5 *248P. E. Smith 437, is in many respects similar to this. There the proceeds of the wife’s farm, resulting from the joint labor of the husband and his children, was attempted to be seized by the husband’s creditors, and the principles governing such relation is thus stated by my brother Agnew, in delivering the opinion of the court : “ The ownership of the farm carries with it at law and in equity,” says the opinion, “ the right to its products. No change can take place in the title to the fruits of the soil without the owner parts with his title or possession, or permits its cultivation for the benefit of another. But the labor of others for the owner, though mingling in the production, creates no title to the products. * * * It matters not, therefore, whether the labor, when thus rendered, be that of the husband or another; without a contract for the products of cultivation by the. husband for himself, it confers no title to the usufruct.” This is a legal as well as a rational view of the relation, and in this case the question was left, in accordance therewith, to the jury, to say from the evidence, whether any contract existed or facts from which one might be inferred, that the wife had yielded the possession of the farm, indisputably hers, to be cultivated and managed,for the benefit of the husband. Nothing more could have been asked, and, as the jury found these facts against the defendant, it settled the want of authority in him to sell the property in question, also, unmistakably, the product or earnings of the farm, against the defendant, and, we think, justly so. There was no departure from these principles in the answers of the court to the plaintiff’s points, or in that portion of the general charge assigned for error. The judgment is therefore affirmed.