30 Del. 461 | Del. Super. Ct. | 1919
charging the jury:—This is an action of replevin, brought by Elizabeth Reynolds, the plaintiff, against Joseph M. Donaway, sheriff of Sussex County, the defendant, to recover the
The plaintiff claims that some of the goods and chattels in question were purchased by her husband with her money for her, and that the other goods and chattels were gifts to her by some person other than her husband. For the other property taken under the writ of replevin the defendant makes no claim. The defendant, who, at the time of the issuance of the writ of replevin, was sheriff of this county, claims a special property in those articles replevied and to which a disclaimer has not been entered, by reason of the goods and chattels being seized on an execution upon a judgment obtained by the American Agricultual Chemical Company against B. W. Reynolds as the property of B. W. Reynolds, the husband of the plaintiff.
The defendant claims damages in the amount of $260 with interest from the twenty-third day of April, 1918.
The defendant acquired whatever right he had in the property as a result of the execution process issued against the husband, and, if the husband had property in the goods and chattels seized at the time of the levy, then the sheriff did have a special property in the goods and would be entitled to their possession.
“Any married woman may receive the wages of her personal labor not performed for her family, maintain an action therefor in her own name”, etc.
Section 3058 provides:
“ The real and personal property of any married woman acquired in any manner whatsoever from any person other than her husband, shall be her sole and separate property.”
This court in the case of Stockwell v. Baird, 1 Marvel 420, 31 Atl. 811, having under consideration said section 3058, said, the same language being also used in the case of Whiteman v. Whiteman, ante, 105 Atl. 787:
“ So that by the special terms of this law there is an inhibition against the wife’s acquiring property directly from her husband. This statute is in derogation of the common law, and while it gives the wife the right to take property from any other person than her husband and to hold it as her sole and separate property, it expressly negatives the idea that the wife can take property directly from the husband. ”
You will observe, therefore, that the wife cannot claim property as her sole and separate property which she acquires directly from her husband.
So that if any of the property which was taken under the writ of replevin in this case was acquired by the plaintiff from her husband, she cannot have a recovery for such property which the
Verdict for the plaintiff.