White v. Clasby, 101 Mo. 162

White v. Clasby

101 Mo. 162 | Mo. | 1890

Black, J.

On October 6, 1882, there was conveyed to the defendant, Cynthia M. Clasby, three hundred and sixty acres of land in Yernon county. In November, 1883, the plaintiff obtained a judgment against James Clasby, the husband of Cynthia, for eighteen hundred • and thirty-nine dollars, on a cause of action which accrued in 1875. This is a suit in equity to subject the land in the name of the wife to the payment of the debt due by the husband to plaintiff. The question is whether this Vernon county land was purchased with the money of James Clasby.

The evidence shows that James Clasby owned some five or six hundred acres of land in Clinton county and a small tract, of little value, in Buchanan county. He became insolvent and judgments were recovered against him, under which the Clinton county lands were sold, and the First National Bank of St. Joseph became the purchaser. On the twenty-second- of February, 1879, the bank paid Mrs. Clasby ten hundred and fifty dollars for her dower interest in the lands. Her deed to the bank included the small tract in Buchanan county,' but it appears the property in that county was covered with *166judgment liens so that all her deed conveyed was her dower interest. That this ten hundred and fifty dollars was her money and not that of her husband there can be no doubt.

The proof is clear and undisputed that at this time she received from her father’s estate two hundred dollars ; from the estate of her grandfather fifty dollars ; and from her son who came home from California in 1878 the further sum of fifty dollars. Her evidence is that she sold a horse for two hundred and fifty dollars ; so that in all she had fourteen hundred dollars. For three or four years prior to October, 1882, she and her husband resided at Kansas City, and while there she purchased a piece of property at the price of two thousand dollars, which she sold at a subsequent date for eight thousand dollars. With this money she purchased and improved the land now in question, much of the money being used by way of making improvements.

The foregoing facts are disclosed by evidence which is not questioned. The first contention of the plaintiff is, that the horse, which was sold for two hundred and fifty dollars, was the property of the husband. The only evidence upon this subject is that of Mrs. Clasby, which is as follows : “I sold a horse I had for two hundred and fifty dollars ; I raised him ; he was three years old ; I sold him about 1878 ; I owned the mother of the horse. My father gave me some horses before I was married and some since. I always claimed the horses as my own; my husband never claimed, them.” It does not appear when the brood mare, of which the horse in question was the foal, was received by her from her father. If subsequent to the married woman’s act of 1875, then the horse-was her property, beyond all doubt. But we do not regard this as a matter of any importance in this case. ' At common law marriage vests in the husband the personal property of the wife then owned or thereafter acquired by her and of which he obtains *167possession. The rule was based upon the notion of identity of husband and wife; but in equity the wife had such a separate existence from her husband that she could have and hold a separate estate. The husband, it is settled, may waive his right to his wife’s personal property and permit her to retain the same free from his marital claims, and this, too, though the property is not a technical separate estate. Botts v. Gooch, 97 Mo. 88, and cases cited. The proof is clear that Mr. Clasby never claimed any ownership of these horses, and that they were always treated as the absolute property of Mrs. Clasby. The horse was, therefore, her property and not the property of her husband.

The evidence shows that, of the two thousand dollars paid for the Kansas City property, fourteen hundred dollars was the money of Mrs. Clasby; but the record is exceedingly reticent as to who furnished the other six hundred dollars. A purchase of property, real or personal, by the wife of an insolvent debtor is justly regarded as a suspicious circumstance, until it is made to appear that the purchase was with' her own money or property. When it is shown that the husband was insolvent at the time of the purchase by the wife, and the controversy is between her and his creditors, a presumption arises that the purchase by the wife was with the means of the husband. Sloan v. Torry, 78 Mo. 623; Seitz v. Mitchell, 94 U. S. 580. It, however, devolves upon the plaintiff to make out a case from which the presumption will arise, before it devolves upon the defendant to produce rebutting proof.

Both Mr. and Mrs. Clasby testified at the instance of the plaintiff, and their evidence appears to be unusually frank, there being no disposition shown to evade a full disclosure. It is clear that Mr. Clasby’s property was exhausted by the executions, and from the record it seems quite clear that he had no means. Mrs. Clasby’s *168evidence shows that her son has an interest in the farm in question to the extent of one hundred and twenty-acres, which he has improved. Under these circumstances the fair inference is that the son, and not the husband, furnished the six hundred dollars. Certain it is that all the evidence in the case, as far as it goes, shows perfect honesty'and fair dealing on the part .of this woman. And it is our opinion the plaintiff failed to make out any case whatever.

The judgment is, therefore, affirmed.

All concur.