69 Mo. 560 | Mo. | 1879
There are two questions presented by this record. 1st. The defendant claims that the money, which was ^® proceeds of the sale of the wife’s land, was reduced to the husband’s possession, and, therefore, that the bank who received the money from the husband, as his money, had a right so to regard it. That this was the common law is conceded, but it is contended that the act of 1875 (Sess. Acts p. 61) taken in connection with the 14th section of the statute in relation to married women, (2 Wag. Stat. 935) has changed the law in this respect; and this is my opinion, and that of a majority of the court. The provision of the act of 1875, is as follows : “ Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture, by gift, bequest, inheritance, or by purchase with her separate
2. The second defense presents more difficulty. It is conceded that the wife can make her husband her agent, but agency must be clearly established. Si® declarations will, of course, not be evidenee of his agency. The question then for the court, raised by the instructions, was whether there was any evidence of such agency. If there was any legitimate proof of such agency the instructions should have been given. The only evidence of such agency offered in the testimony was that of the wife. She states that being informed by her husband that he had deposited the money to her credit in the bank, and after finding the certificate
It is the obvious intent of our recent legislation, to restrict within the narrowest limits, the power of a husband over his wife’s personalty. Such legislation may lead to hardships, as it does apparently in the present case; but the judiciary have no concern with the policy or impolicy of legislative enactments. The legislature have required the written assent of the’wife, to the husband’s reduction of her personal property to his possession. They have not prohibited her from making him her agent, nor altered the common law in that respect. But the spirit of legislative enactments corresponds with such judicial decisions as require very clear and unequivocal proofs of such agency. As was well said by Judge Cole, in McClaren v. Hall, “ This is for the reason, that in the general experience of the past, if not in the philosophy of the present, the wife is under the control- of, and subordinate to the husband,
The judgment must be reversed at all events, because of the non-joinder of the husband; 2 Wag..Stat., p. 1001, s 8. The Statute of Jeofails (2 Wag. Stat. ' , pip. 10d6, § 19), does not reach a case of this sort, where the defense was made by answer on the trial and called to the attention of the court by an instruction. Judgment reversed and case remanded.
Reversed.