55 Vt. 404 | Vt. | 1883
The opinion of the court was delivered by
I. This is an action of replevin for a piano. The case was referred and came to the County Court on the referee’s report. Such a judgment was then to be rendered upon the facts reported as any legitimate amendment of the declaration would admit of. An amendment alleging that the plaintiffs were husband and wife, and that the piano was the property of the wife, would neither add a new cause of action nor a new party to the suit, and would be permissible. The cause of action would be the piano both before and after the amendment, and the right in controversy would be that of the two plaintiffs to recover it. If the piano is the sole property of the wife, in an action at law the joinder of the husband as a co-plaintiff would be necessary. The bond was conditioned upon the right of the plaintiffs to have the piano delivered to them as against the defendant who had attached it as the property of a third person. Under the decisions of this court in regard to judgments on referees’ reports, holding that the cause of action or subject-matter in controversy is the foundation of the judgment, if the pleadings can be so amended legally as to
II. The controlling facts found by the referee are that in 1864 the wife’s father bought the piano for her, and, in two or three months after, on the occasion of her attaining her majority, gave her a birthday party, and in the presence of the assembled guests, took her to the piano, told her that was her birthday present from him and that he gave it to her; that thereafter the family always spoke of it as her property and that she used and treated it as such; that ghe remained at home until her marriage in 1867 ; that she then went away from home to live, and left the piano in her father’s house, and never removed it therefrom, as she never had a suitable place to put it; that she visited her father’s house from time to time, stopping three or four months seven or eight years ago, and had been living in her father’s family for the last three years and more, and on all these occasions used and treated the piano as her own ; that the piano remained all this time in the house of her father; that her husband always treated it as her separate property; that in 1877 it was attached and sold by the consent of her father as his property unbeknown to her, but was not removed from his house. There is no fact found, save his consent to its sale, that after the gift the father ever exercised dominion over the piano further than to store it in his house. The only question submitted by the referee to the court is whether these facts constitute a valid gift of the piano from the father to the plaintiff wife. We entertain no doubt on this question. The language used, as well as the occasion, indicate a clear intention of the father to pass the title of the piano to the daughter, and as clearly her intention to accept the gift. There was, therefore, the making and acceptance of the gift. He spoke of it, as did the family thereafter, as her property. She used and treated it as her property. This must mean that she assumed and exercised the dominion of an owner, took and retained such possession as the nature of the property admitted of, if capable of being locked, took possession of the key, locked and unlocked it, used it her
The property in contention was of that bulky character that forbids manual possession. The only possession its nature admitted of consisted in its use and treatment. The treatment of an owner includes acts of dominion and control. The property itself was such as is much more generally used by females than males, and for that reason more likely to be owned by the former. The occasion when the gift was made, especially in a country town, would give notoriety to the transaction equal to a sale in market overt. It is to be remembered that in these days it is not an uncommon thing for the wife and the children, while living at home, each to have and keep separate property in the common home of them all. It is not a matter of course, and no creditor has the right to assume, that all the personal property in the house belongs to the husband and father. It is not uncommon for the daughters to have rooms set apart for their special use, furnished with furniture purchased by, or given to them, nor for them to own sewing machines or musical instruments. The facts reported do not show a joint possession of the piano by the father and
Judgment reversed, and judgment rendered for the plaintiffs to recover nominal damages and costs.
See Fletcher v. Fletcher, ante, 325.