Lawall v. Lawall

Opinion by Mb. Justice Stebbett, In her petition for leave to intervene and defend pro inter esse sua, Mrs. Lawall avers she is the wife of Charles A. Lawall, defendant in this action, and claims joint ownership of the goods replevied; that, when the writ was executed, she had exclusive possession of the goods, and claimed title thereto; that, to the best of her information and belief, her husband has willfully and maliciously deserted her, and will not appear nor make any defence to said action, because he and his father, the plaintiff, have “ conspired to defraud the petitioner of the use and possession of said goods and chattels.” These averments are sustained by the petitioner’s deposition, in which some of the facts and circumstances are more fully detailed. Without either admitting or expressly denying said allegations of exclusive possession, desertion, conspiracy, etc., the plaintiff in his answer says: “ The goods replevied all belonged to Charles Lawall, the defendant, and his title was transferred to the plaintiff for full value paid. None of them belong to Mrs. Mary E. Lawall, his wife. She was present [630] when the sheriff executed the writ and delivered the goods to plaintiff.” In view of the facts disclosed by the petition, answer and deposition, it would have been error to have denied petitioner’s right to intervene and defend'. It was virtually conceded that she was in exclusive possession of the goods when the writ was issued and executed. For that reason alone, she should have been named as defendant or codefendant in the writ. In addition to that, the averments of joint-ownership with her husband, desertion by the latter, conspiracy between him and his father, etc., so strengthened petitioner’s claim, that it could not have been ignored without injustice to her. There is no merit in the first specification of error. The abstract of proceedings, showing the issue and how it was made, does not fully comply with our rule, but we infer from what is said, that plaintiff assumed the burden of proving title in himself to the goods, coupled with the right of immediate possession. On the trial, he claimed and introduced testimony tending to prove that he purchased the goods for his son, to be used in housekeeping, with the understanding that the latter should acquire no title to them until he refunded the amount thus expended. He also made the further claim that his son, before deserting his wife, gave him a bill of sale of the goods, witnessed by Charles M. Maueh. These positions were not entirely consistent. The former is predicated of the fact that his son never owned the goods. The latter assumes, as true, the fact sworn to by plaintiff in answer to his daughter-in-law’s g petition, that they “ all belonged to Charles Lawall, the defendant, and his title was transferred to plaintiff for full value paid.” The testimony of the subscribing witness to the bill of sale was calculated to excite suspicion as to the bona fides of that transaction. He testified that Charles was not present when the bill of sale was witnessed, nor did he ever admit that he executed the same; that he signed as a witness, at the request of plaintiff, in the absence of Charles, and without knowing personally, or from Charles himself, that he ever executed it. The plaintiff also testified that no money consideration was ever paid for the bill of sale. It also appeared in evidence that plaintiff knew his son was [631] about deserting his wife, and that he assisted him in procuring funds with which to pay expenses of leaving this, and going into another state. These and other facts and circumstances bearing on the question of plaintiff’s title and right of immediate possession, were proper for the consideration of the jury. The offer recited in the second specification, was neither incompetent nor irrelevant. The same remark is applicable to the third specification. Defendant’s testimony further tended to prove that the goods in controversy were purchased by plaintiff and given to his son and daughter-in-law when they commenced housekeeping ; that they were not merely loaned to the son with the understanding that the title should remain in his father until the goods were paid for; but that they were an out and out gift to the young couple to start them in housekeeping. The defendant, Mrs. Lawall, in testifying to what occurred on the eve of their commencing to keep house, stated in substance, that, after their rooms were furnished with the goods in question, plaintiff and his wife, with two or three invited guests visited the apartments, inspected the furniture, etc., and while there, spoke of the goods as the property of the young couple. Being asked to give the language used by plaintiff and his wife on that occasion, the witness answered: “ They said, this is now the place you are going to live; you are going to commence housekeeping, and these are your things, and all you have to do is to take good care of your things; the doctor and his wife both said that, and Mrs. Young and her servant were both there.” Without further reference to the testimony, it is sufficient to say that it presented questions of fact which were properly for the consideration of the jury, and there appears to have been no error in submitting the case to them. Neither of the specifications of error is sustained. Judgment affirmed.