Dziekiewicz v. Caffrey

Keeler, J. The decision of the Superior Court is based upon the conclusion of the trial judge, above set forth, that the title to the personal property forming the subject-matter of the action remained at all times *455 in the plaintiff, and was not divested by her action at the time of the making of the bill of sale of March 11th, 1921, executed by her husband. The finding of facts does not support this conclusion. The finding does not disclose whether the “seventeen head of cattle” named in the bill of sale included the eight cows, four calves and a bull, which the finding shows to be then upon the farm, but in addition to the specific enumeration of seventeen head of cattle, the bill of sale also conveys “all live stock” on the farm, which designation would include the live stock of the plaintiff, and which clearly would have passed by the bill of sale had they been the property of the husband. Whether this last-named live stock in fact passed to the vendees in the bill of sale, depends upon the attitude and conduct of the plaintiff with reference to the transaction. The trial court finds that the plaintiff was “fully apprized” of the negotiations between her husband and the Stanloviches, was present when the bill of sale was executed and delivered, and consented thereto. This is a finding of an ultimate fact. No subordinate facts are found to characterize the nature and extent of her knowledge of the purport of the instruments executed on that day, of of the words used to evidence her consent to the transaction, or whether consent was properly inferred from silence. Had either of the parties desired a more detailed statement of facts surrounding the negotiations and their consummation, it could and should have formed part of the finding. In the absence of more detailed and subordinate findings, we can only form conclusions from a fair interpretation of the language of the findings as it stands. The plaintiff was apprized of the negotiations; these negotiations included the nature and content of the bill of sale, and this included knowledge of the fact that this instrument purported to convey all the live stock on *456 the farm, part of which was her individual property. It is further found that she consented thereto. That, in fairness, can only be taken to mean a full consent to the legal consequences flowing from the transaction. No other fact appears in the finding to limit such a construction, and she must therefore be held to be in the same position as if she had signed the bill of sale. Furthermore, there was no necessity of a bill of sale either from her or from her husband to carry out the purpose and intent of the negotiations. Title would have passed by the agreement to sell followed by delivery of possession. The plaintiff and her husband and also the Stanloviches were all resident upon the farm, jointly carrying on the business connected with its use, and the latter had acquired the legal title to the farm and were in possession. The bill of sale was a convenient and proper thing to have as a matter of evidence, but by no means essential to effectuate the bargain between the parties. There is no need to deduce from the circumstances surrounding the dealings of the parties any express agency of the husband to convey the property of the wife, although the claim of defendant’s counsel in that regard is not without force. The live stock was the separate property of the plaintiff, since she was married after April 20th, 1877; she could contract with it as she chose, and could likewise be estopped with reference thereto as fully and freely as if she were sole. It hardly seems necessary to invoke the doctrine of estoppel, as claimed by the defendant’s counsel, as might have been proper in case the finding had disclosed merely a silent acquiescence. Had that been the case, however, the cases cited on defendant’s brief, and the decided weight of authority generally, would sustain an estoppel. The finding of the court cannot be limited to consent by silence. Other parts of the finding disclose that plaintiff was somewhat of a business wo *457 man and at some time prior to the events with which the instant case is concerned had herself, during her husband’s absence, conducted a farm of her own; and in the memorandum of decision, made part of the finding, the trial judge finds that plaintiff seemed to be a woman of some independence. Plaintiff’s counsel in his brief assumes and states that “no property of the plaintiff was included in the bill of sale,” ignoring the fact that all of the live stock on the farm was included in its terms, and hence urges that it was not her duty to object. Had this erroneous assumption been true, she would not have been called upon to object, but in fact she not only refrained from objecting but affirmatively consented. Upon this assumption her consent was of no legal significance, however important in view of the family morale. We therefore conclude that title to plaintiff’s herd passed to the Stanloviches. Such title as the latter took, however, was subject to the other terms of the bargain in connection with the land, and by the oral contract of the parties in connection with the sale, which was substantially the same as the unexecuted draft agreement, it was provided that a half interest in the conveyed property, real and personal, should be reconveyed to Michael when he repaid certain sums to the Stanloviches. That is, the title of the latter was an absolute legal half interest in the property, and a legal title in the other half subject to the equitable interest of Michael therein. The Stanloviches conveyed most of the personal property to the defendant by the bill of sale set forth in the finding. The present action was tried at the same time as another action brought against the defendant by Michael to recover certain damages for the conversion of personal property belonging to him. The memorandum of decision as printed in the record covers both cases. *458 In Michael’s action the court held that the Stanloviehes could convey only their interest in the property to the defendant, which was an entire and absolute interest in one half, and an interest in the other half equal to the advances which Michael was bound to repay to redeem it, and that Michael’s damages would be the value of the property converted less the interest of the Stanloviches therein. It was a part of Michael’s case to show what the advances were, and this he failed to do; and as he failed to do it, the trial court was compelled to find for the defendant. The plaintiff in this action, however, is not entitled to rely upon these facts for a recovery upon the basis above outlined, since by the terms of the agreement the reconveyance was to be to Michael and no part of the property was to be reconveyed to her. She parted with all her interest in property she had owned when she consented to the conveyance of the same by her husband; it was her conveyance. Had the plaintiff retained title in the live stock up to the time of the seizure of the same by defendant, we do not think as claimed by defendant, that she was es-topped by her conduct at that time, and that the trial court rightly so held; but the conclusion we have arrived at obviates the necessity of any detailed examination upon this point. There is error, the judgment should be set aside and judgment rendered for the defendant. In this opinion the other judges concurred.