34 Iowa 539 | Iowa | 1872
Under this section of the statute, the errors complained of by appellant are properly reviewable, in this court on appeal, without a motion for a new trial having been made and overruled in the court below.
On cross-examination, she was asked the following question :
“ "Where was the colt kept, you sold to Beebout, and how old was it when your husband gave it to you ? ”
To which she answered as follows :
“ It was kept in our stable; I do not know as I can tell just how old it was when I bought it, some where near a year old I should think. ”
This question and answer were objected to as immaterial, and were excluded. In this the court erred. The question was legitimate cross-examination, being connected with the subject about which the witness testified in chief, and the answer was material as tending to show how long the colt was kept on the premises after its sale to the plaintiff, and whether it was left in the custody or under the control of the plaintiff’s husband.
This was the evident design of the question, and the answer is responsive, and tends, in some degree at least, to 'show that, although the wife purchased the colt, it remained in the possession of the husband, as it had been previous to the sale.
The testimony of the plaintiff, and of the husband also, shows that the husband sold the colt to Beebouts for the wife. The com-t refused to admit evidence of what the husband said as to the ownership of the colt, or whether Beebouts was informed by the agent of the plaintiff’s interest therein. This was also erroneous. The evidence offered tended, in some degree, to show that the husband had possession of the colt, controlling and exercising acts of ownership over it, selling it as his own property.
The defendant also offered further evidence tending to
The sixth assignment we pass over, as being too general to require examination.
The substance of the instructions given was that, if the jury found that the plaintiff received the $100 from her motherland paid the same to her husband for the colt, then the colt would be her separate property; and if she sold the colt to another person, and took a note and mortgage for the same in her own name, then such note and mortgage were her separate property; and if she took the mare mortgaged in satisfaction of the note and mortgage, then, if the mare was not reduced to the possession of her husband, but was in her own possession, it would not be liable for his debts, and the verdict should be for plaintiff.
The instructions refused were to the effect that, if plaintiff received the $100 from her mother in 1861, and purchased the colt from her husband with the money thus received, and left the colt in her husband’s possession, or under his control, till 1869, and gave no notice of her ownership, as required by section 2502 of the Revision, that, as to the husband’s creditors, the colt became his and liable for his debts; and if he afterward sold the colt as
If, after the pinchase, by the plaintiff, of the colt, from her husband, she permitted it to remain in his possession, or under his control, it would become his property, so as to be hable for his debts, unless notice of her ownership was filed for record, in the office of the recorder of deeds, of the proper county. Rev., § 2502. And if the property was under his control at the time the debt was contracted, it is subject to be taken on execution or attachment, even if notice was given before the issuing of the writ. Odell & Updegraff v. Lee & Kinnard, 14 Iowa, 412. This rests upon the principle that it is to be presumed that credit was given to the husband upon the faet that property under his control belonged to him, and was subject to his debts. To avoid this presumption, the wife, if she claims it as her separate property, must make her claim known by matter of record lefore the debt is incurred. The property thus left under the control of the husband being liable for his debts, any other property for which it may be by him exchanged, subsequent to the creation of an indebtedness by him while the former was under his control, would not prejudice the rights of the creditor, and hence the court erred in giving and refusing the instructions complained of. See Duncan v. Roselle, 15 Iowa, 501; Loring v. Cunningham, 17 id. 510; Ticonic Bank v. Harvey, 16 id. 141; Odell & Updegraff v. Lee & Kinnard, supra. The judgment of the circuit court is therefore
Reversed.