80 Mo. 626 | Mo. | 1883
This was an action on a bond of indemnity, given by the appellants to the sheriff of St. Louis, to indemnify Sarah Goldsoll for damages she might sustain by reason of the seizure, under writ of attachment, in favor of appellants, of certain personal property consisting of household furniture. The attachment was against her husband, and the property was seized as belonging to him. The answer denies the right of property in the wife, and alleges it as being in the husband at the date of the seizure. The jury found that certain articles sued for were presents given Sarah Goldsoll since the 25th of March, 1875, and for which they assessed damages in her favor in the sum of $148.51. Judgment was rendered in favor of plaintiff in accordance with this verdict. The plaintiff ajopealed, and the St. Louis court of appeals reversed and remanded the cause. State ex rel. v. Chatham National Bank, 10 Mo. App. 482.
The case seems to have been elaborately presented to
Touching the ownership of the property in controversy, the court instructs the jury as follows :
1. If you believe from the evidence that Mrs. Gold-soil’s father, prior to her departure for this country, gave her $6,000, or any greater or less sum of money, for the purpose expressed-at the time of the gift, that it was intended as a provision for the support of herself and children, and if you find that she also had at the time other money and jewels which she had earned and acquired whilst transacting business in her oivn name, and on her own account in Russia, and if you believe she brought with her to this country the funds thus given to her, and thus earned and acquired, and that after her arrival to the State of Missouri, by agreement between herself and husband to that effect, she continued to hold, manage and use said fund, and the property in which the same was invested as her individual property, free from the control of her husband, then, as a matter of law, the court instructs you that said fund thus acquired, held and used, (if it was so acquired, held and used,) by Mrs. Goldsoll, and any property in which the same urns invested, continued to be the separate estate of Mrs. Goldsoll so long as it was so held, managed and used by her, and the same was not subject to seizure as the property of her husband for his debts, and if the jury believe that any of the property involved in this controversy described in the bond sued upon, was the property that Mrs. Goldsoll continued to hold as a part of her separate estate? in the manner above supposed on March 25th, 1875, that it was property purchased by her after said date, with her own separate money or means, then she will be entitled to recovei the value of said property.
To understand this instruction in its application to the
The record shows that testimony was offered by the relator tending to prove that in the year 1862, she being then a married woman having children, received in Russia from her father a gift of about $6,000 in Russian coin, and that said gift was made to her for her own use and benefit, to be kept from her husband, and to be applied by her, if necessary, in making provision for herself and her children, and that she had been engaged in business, manufacturing silver-ware, in Russia; that in the year 1862 she came with her children to St. Louis, bringing with her the said $6,000, and about $4,000 of her own earning, which she invested from time to time with her husband’s consent.
That subsequently she sold out her interest in certain investments she had made, and converted her property into money and invested some of it in this furniture, and that some of this furniture was given to her by her friends and relations, and that none of it was purchased by her husband, and that he never claimed to exercise any acts of ownership or control over said' personal property, and that said property was worth about $3,000.
On the other hand, the defendant offered evidence tending to disprove all the facts which plaintiff’s testimony tended to prove, and also other evidence tending to prove that all said personal property, except some articles of trivial value, were bought by said Meyer G-oldsoli with his own money, and that none of said property belonged to said Sarah G-oldsoll.
The court of appeals held that if the money given to her by her father in Russia, was given to her separate use, and if the money and jewels acquired there in business were acquired while transacting said business in her own name, and on her own account, so as to become her separate estate, all of such property remained to her separate use after her arrival in this country, and did not depend upon the agreement and consent of her husband for the continu-
During the trial the defendants, against the objections of plaintiff, were permitted to prove that Mr. Goldsoll had returned the property in controversy to the assessor as his, and had taken out a policy of insurance on it in his own name. There was no evidence tending to prove that this was done with the knowledge and consent of Mrs. Goldsoll. The court of appeals held this evidence to be incompetent. The difficulty attending this kind of testimony is incident to the procedure of common law courts protecting and enforcing the rights of married women which were originally only creations in equity and unknown at law. Of course, this evidence was incompetent to prove that any part of her separate estate as known in equity, had been relinquished by her or conferred upon her husband. Her consent was wanting. But as to any gift or acquisition from which his marital rights were not excluded, this evidence would be competent to repel the establishment of a separate estate, for the reason that no such estate could arise in respect to such property without his consent. This consent may be evidenced by declarations and acts, as well as by express agreements. If the jury should find that the gifts or acquisitions of property were not of such a character as excluded his marital rights thereto, or if they found the facts from which the law infers a general and not a separate estate of the wife, then this evidence is competent to prove that this general has never been changed into a separate estate, as claimed by plaintiff, but that it continued subject to the dominion of the husband at common law.
The objection raised to the qualification of juror Small does not become so important, in view of the necessity of reversing the case on other grounds. The court accepts or rejects jurors according to their qualifications under the law, to try the case in which they are called. The decision of the court accepting or rejecting a juror, is the decision
The deposition of Mrs. Goldsoll was competent evidence against her, being in the nature of admissions or statements adverse to her pretended rights. In Slatterie v. Pooley, 6 M. & W. 669, Lord Abinger, concurring -with Baron Parke, stated, “ that he had always considered it as clear law that a party’s own statements were in all cases admissible against himself, whether they corroborate the contents of a written instrument or not.” A party’s deposition, as a written statement of facts, is admissible, although he may be present to testify or has testified. Kritzer v. Smith, 21 Mo. 296; Charleson v. Hunt, 27 Mo. 34; State v. Eddings, 71 Mo. 545; Zimmer v. McLaran, 9 Mo. App. 591.
For the reasons given herein, the judgment of the St.
