12 Minn. 468 | Minn. | 1867
By the Court
The plaintiff in this case is the wife of the defendant; they were married in March, 1861, and they separated in November, 1865, since which
Prom the allegation, that “the plaintiff purchased said above described premises, ” * * and “ was the owner of the improvements on the said premises, and of the land, ” it will be presumed, after judgment at least, that she purchased for herself, and with money that was her separate property. See Nininger vs. Carver Co., 10 Minn., 135. And even if consent of the husband' was necessary, it will be presumed, he not having objected to the purchase, but in fact having ratified it, by joining with her in a sale of the premises.
The possession and improvement of the school land, gave the plaintiff certain rights. (Laws of 1861, Chap. 14.)
Our statute, Comp. Stat. 571, Sec. 106, secured to a married woman-any real or personal estate acquired before her marriage, “ either by her own personal industry, or by inheritance, gift, grant or devise, or to which she may, at any time after her marriage, be entitled, by inheritance, gift, grant or devise. ” The word “ grrnvt, ” as used in this statute, includes purchase, and applies alike, we think, to corporeal, and incorporeal, personal and real property. In other words, the statute was intended to secure to a married woman any
But while we think there are no such radical defects in the complaint as make necessary a reversal of the judgment, yet we think the facts found by the Court do not support it; the Court has not passed on some material issues raised; it is not found whether the plaintiff paid for said land with her own money, or with that of her husband, or whether the defendant agreed to receive and reinvest the proceeds of the sale of the school land for his wife’s benefit, aiid in her name. From the finding of the Court, we cannot discover whether there is
The recital in the conclusions of law, of the land “ having been paid for by the proceeds of the sale of the school land, her separate property, ” is unsupported' by any facts found, and does not show that said school land was her separate property. "While in some cases a finding may be corrected by the court below, without a rehearing, we do not think this a case in which that course could properly be pursued. The issues not passed upon are material; the trial below was had about eighteen months ago, and the Judge who tried the case has since been almost continually engaged in the trial of other causes; it is not, we think, under these circumstances, to be presumed that the evidence given, or facts proven on the trial are so clear in his memory, as to enable him, satisfactorily to himself, or with unquestionable correctness, to determine these issues without a rehearing.
New trial ordered.