93 P. 369 | Idaho | 1908
Lead Opinion
This is an action to recover from the respondent the sum of $2,001.25. The plaintiff alleges that she deposited with the defendant bank at different times, from January 3, 1898, to May 26, 1902, the sum of $4,430.76; that she checked against the same until the deposit was reduced to-the sum of $2,001.25, and that upon presentation of a check for that amount, payment was refused. The defense is that the entire amount so deposited was checked out either by plaintiff herself or her husband, he issuing checks bearing the name of the plaintiff and signed by himself. However,, there were two checks signed by the husband alone. It is admitted that during the times mentioned in the complaint,, the plaintiff and one E. J. Sencerbox were husband and wife. The record clearly shows that the entire amount deposited was at different times paid out upon cheeks signed as above stated. The cause was tried by the court without a jury and judgment was entered in favor of the defendant. This appeal is from the judgment.
“The husband has the management and control of the separate property of the wife, during the continuance of the marriage, but no sale or other alienation of any part of such property can be made, nor any lien or encumbrance created, thereon, unless by an instrument in writing, signed by the husband and wife, and acknowledged by her upon an examination, separate and apart from the husband, as upon a conveyance of real estate.”
The provisions of that section were in force at the time this transaction occurred, but were repealed in 1903. (Sess. Laws 1903, p. 345.)
As said section of the statute stood before it was amended in 1903, there was no exception as to the classes of the wife’s separate property that were placed under the management and control of the husband by the provisions of said section. The statute reads: “The husband has the management and
It must be understood that the rights of married women as to the management and control of their separate property, and their power over it, in the state of Idaho, do not depend alone on the principles of the common law or upon the doctrines of the courts of equity, but mainly upon the constitution and statutes of the state. (See MacLay v. Love, 25 Cal. 368, 85 Am. Dec. 133.). Under the provisions of see. 2498, the husband is made the statutory agent to manage and control the wife’s separate property. Now, if money is the separate property of the wife under the statute, unless that is excepted from the management and control of the husband, he certainly has the right to reduce it to his possession and manage and control it. In the case at bar, the wife had deposited $794.95 in the defendant bank before her marriage. At the time of her marriage, some of her money was deposited in said bank; the husband thereafter made certain collections for her, sold some property and deposited the proceeds amounting to $3,635.95 in said bank in her name, and there
The question arises under the law whether the wife can defeat the management and control of her separate property by the husband simply by placing her property in the possession of some third person. I think not, as the law provides
In Evans v. English, supra, it is held that it is not only the power, but the duty, of the husband to receive the separate estate of the wife, whether it consists of money or other property ; how can the husband have the management and control of personal property without the right to its possession? And in that ease it is held that ‘‘the possession vests in the husband while the title remains in the wife.”
In Marks v. Cowles, 53 Ala. 506, it is held: “The power of the husband is to receive the property of the wife, a power he is not required to exercise concurrently with the wife. His receipt, therefore, is a full discharge in law and in equity to the person to whom it is given. His duty is to manage and control the property, ’ ’ etc.
In Coleman v. First Nat. Bank, 94 Tex. 605, 86 Am. St. Rep. 871, 63 S. W. 867, which is a case very much like the one at bar, after stating that that court was able to find but little authority upon the question of the management of the wife’s separate property by the husband, and that it was largely a matter of statutory regulation, and referring to the statutes, the court said: “But it (the statute) does imply that he may put it to its appropriate use so that it shall produce an income. As to her money, the power of management gives him the right to its possession to keep it safely, and hence to deposit it in the bank and to draw it out. Such being the authority of the husband under the law, he being the statutory agent for the management of her separate property and funds, he would have at least as much power over money deposited in the bank even in her name as any other trustee would have over a like deposit of trust funds, and the bank would be under the same liability to pay out the money upon his check.”
The court then refers to trustees and trust funds, as follows: “If such be the rule as to ordinary agents and trustees, it certainly is the rule in this state as to the husband
‘ ‘ She alleges that she was accessible to the bank, and seems to have assumed that it was the duty of the agent of the bank to hunt her up and keep her informed as to the condition of her account. In this she was mistaken.”
Under the laws of banking, a general deposit of money in a bank creates the relation of debtor and creditor. The bank is the debtor and the depositor is the creditor. In the case at bar, the wife was the creditor and the bank was her debtor.
Under the provisions of said sec. 2498, the husband is made the statutory agent of the wife, and has the management and control of her separate estate during the continuance of the the marriage, unless he is deposed or deprived of his agency, as provided by the provisions of sec. 2499; then her separate property passes into the hands of a trustee appointed by the court, but not into her management and control. Until his agency is thus terminated, the husband has full authority to collect debts due his wife and to give full and sufficient receipts or acquittances therefor, and the debtor is as fully protected by such acquittances as if given by the wife her
‘ ‘ The indebtedness of the bank upon a deposit is discharged pro tanto by its payments made upon any order, cheek, or draft signed by any person who would have the power to demand and receive the deposit, regarded as a simple debt, and to give full and sufficient acquittance for it.” That, I think, is the correct rule, and if a feme sole had made a loan to an individual, payable on demand, or had deposited money with a person subject to her order, and before she demands payment she marries, the husband would, under the provisions of said sec. 2498, have full authority to demand and collect such deposit or loan and give a full acquittance therefor. A bank being the debtor, in no manner changes the rule. As stated in the last authority cited, the bank is. discharged pro tanto upon payment of a deposit, on the check of any person who had the right to demand and receive the money so deposited regarded as a simple debt. The money becomes no more sacred from its deposit in a bank and therefore excluded from the possession of a statutory agent, than money deposited with a friend or with a shopkeeper.
If the legislature had intended to except the management and control of the wife’s money, which was her separate property, from the provisions of sec. 2498, Rev. Stat., appropriate language would have been used for that purpose, but we find no exception whatever. If the husband had the management and control of the wife’s separate money, the wife could not control it by putting it in the bank or by delivering it to a friend to be kept for her.
The statute does not provide that the management and control of the separate property of the wife shaE belong to both the husband and wife, but it declares that it belongs to the husband alone. However unwise we may think the provisions of said section, the court ought not to repeal or set them
It appears from the record that at least $940 of the money so drawn on check out of the bank was sent to the plaintiff by the husband. If he had the right to draw it, as we hold he did, the bank is not required to inquire into the purpose to which he applied said money. (1 Moore on Banks and Banking, sec. 317.) Of course, a bank would not be justified in receiving trust money from a trustee in.payment of a personal debt of the trustee due the bank.
From the foregoing, we conclude that the judgment must be affirmed, and it is so ordered. Costs are awarded to the respondent.
Dissenting Opinion
Dissenting. — I dissent from the views expressed by the majority of the court and the conclusion reached thereon. It seems to me that the error into which my associates have fallen arises out of a misconstruction and application of the words “management and control.” It is difficult for me to understand how in the reasonable and ordinary use of those terms any such meaning can be gathered as given to them in the majority opinion. It is a common maxim that things which cannot be lawfully done directly cannot be lawfully done by indirection and circumvention. The statute gives a married woman a separate property, and while it confers upon the husband the right of management and control thereof, it does not allow him to alienate or convert the same.
In this ease the wife preferred to have a deposit and credit at the bank to having the money itself. When the bank allowed the husband .to exhaust that credit without her consent and to convert the property right she had in such general deposit into another form, class and character of property, it was clearly acting without any sanction of law or right and contrary to every principle of banking. The assumption that the husband has a right to convert any article, class or character of the wife’s separate property into some