Woffenden v. Charauleau

By Court, Tweed, J.: The appeal is from the first district, Pima county. Counsel for the respondent, before submitting his argument upon the merits of the case, asked to be heard upon a preliminary motion to strike out from the transcript certain portions thereof as not being properly certified, citing the twelfth rule of this_court as entitling him to be heard upon such motion. The rule invoked reads as follows: “Exceptions to the transcript, the bond or undertaking on appeal, or the notice of appeal, or to its service or proof of service, or any technical objection to the record affecting the rights of the appellant to be heard on the points of error assigned, must be taken at the first term after the transcript is filed, and must be noted in writing, and filed at least one day before the argument, or they will not be regarded. In such case, the objection must be presented to the court before the argument on the merits.” On the tenth of January the case was set for argument on the thirteenth. It was not reached until the twenty-fourth of that month. On the twenty-first the counsel for respondent noted in writing and filed his objections to the transcript, and on the twenty-fourth, when the case was called for argument, asked to be heard upon his motion to strike out. The court declined to hear the motion argued, and counsel for the respondent excepted to this ruling. The object of the rule is obvious. It is intended to enable the court, as early as is practicable, to dispose of all preliminary objections to a hearing upon the merits of the cases to be brought before it for consideration. To hear such objections as early as possible for its own convenience and for the convenience of the appellant who might be permitted, in case of error or mistake in copying exhibits or otherwise, to correct the same in season for a hearing at the term. The rule requires that the exceptions to the transcript be noted at least one day before the argument, or that they be disregarded. — 350 — When a case is set for argument, and no exceptions are noted and filed before the day so fixed, we think all exceptions to the transcript should be deemed to be waived. It was with this view of the intention and spirit of the rule cited that we declined to hear the motion of respondent’s counsel; and we take occasion to say here, that wlijle we do not wish to encourage any laxity in practice in appeals to this court, we shall avoid as far as possible allowing technical objections to stand in the way of a hearing upon the merits of such cases as may come before us. There are obvious reasons why the supreme court of a territory like ours should, by liberal rules liberally construed, aid litigants to obtain a hearing upon the merits of cases brought before it by appeal. We will now consider the case as presented to us. On the second day of July, 1875, a judgment was rendered by the judge of the district court, first district, Pima county, in favor of the plaintiff herein, in an action then pending in said court for forcible entry and detainer, wherein the plaintiff herein was plaintiff, and the defendant herein was defendant. The premises in controversy in that action, and for which judgment of restitution was had in favor of the plaintiff, were three quarter-sections of land lying contiguous to each other in Pinal county, and known as the Robledo, Moreno, and Duran ranches. The plaintiff in this action asks to recover the rents and profits of the premises above mentioned from the tenth of April, 1874, up to the second of July, 1875, the period, as is alleged, during which the defendant wrongfully withheld the premises from the plaintiff. Also to recover the value of a quantity of corn and a growing crop alleged to have been upon the premises at the time of the unlawful entry of defendant, and by him converted to his own use; and, among other articles of personal property, two horses and three yoke of oxen, of the alleged value of two hundred and fifty dollars, etc. The defendant in his answer claims ownership of the premises described in the complaint, admits that plaintiff was owner of one half of the growing crop, denies plaintiff’s ownership of the horses and oxen, and alleges that he, the defendant, is the owner thereof. — 351 — On the trial the defendant introduced evidence tending to show that certain of the personal property, the oxen and horses, were purchased by him from Anna G. Woffenden, the wife of the plaintiff, and that this property was purchased by her separate means, and was her separate property. Transcript, fo.lios 61, 62. Testimony of plaintiff upon cross-examination, where plaintiff, in answer to questions touching the purchase of this property, says: “I got that property at home; my wife bought it; she bought it with money belonging to both of us; what is hers' is mine; I did not furnish any money directly to pay for it; I did not furnish any money.” See also testimony of defendant, folio 81. Among other instructions, the court charged the jury as follows: “The title to the ranches is not here in question, nor to be considered by you. Whatever of the other property in controversy was acquired by the plaintiff and his wife subsequent to their marriage is common property, and as such subject to the management and disposition of the husband, and the wife had no authority to sell the same, unless you find that she was authorized thereto by her husband as any other agent might be. The presumption of its being common property would be removed if you find that said property was taken in exchange for the separate property of either spouse, or was acquired by gift, bequest, devise, or descent; but such proof must be clear and satisfactory. * * * You must also find that said property was owmed by her before marriage with the plaintiff, or acquired afterwards in the manner above described, in order that she might give a complete title thereto as against her husband; or you must find that she was the authorized agent of the husband to sell the same,” etc. The court also gave the following instructions: “If you find that any of the property in controversy is rents, issues, and profits of the separate property of either spouse, it is common property by the laws of this territory, and subject to the management of the husband, with like power of disposition as over his own separate estate, and no marriage contract in derogation of these rights is of any force or effect.” The jury rendered a verdict for the plaintiff for one thou — 352 — sand dollars, itemized as follows: For one half of the crop of 1874, seven hundred and fifty dollars; three yoke of oxen valued at one hundred and fifty dollars; one horse valued at forty dollars; and fifteen hundred pounds of corn valued at sixty dollars. Both these instructions were excepted to by counsel for the defendant, and their being given is assigned as error. In the first of these instructions we understand the leárned judge to charge to the effect that to constitute separate property in the wife, when the property is obtained after marriage, it must have come to her by gift, bequest, devise, or descent, or it must have been obtained in exchange for her separate property; that she could not sell any portion of her separate property and invest the means derived from such sale in other property, and hold the same as a part of her separate estate, but that such property so purchased would become common property, and subject to the management and disposal of her husband. Both of these instructions are erroneous. The first section of the act of January 22, 1871, entitled “An act relating to the separate property of married women,” reads as follows: “Married women of the age of twenty-one years and upwards shall have the sole and exclusive control of their separate property, and may convey and transfer lands or any estate or interest therein vested in or held by them in their own right, and without being joined by the husband in such conveyance, as fully and perfectly as they might be if unmarried.” The second section repeals all acts and parts of acts so far as they conflict with these provisions. The sole and exclusive control and the right to convey as if unmarried given by this statute to the wife involves the right so to control and convey for her own separate use and benefit; it involves the right in the wife to sell any of her separate property, and to invest the proceeds of such sale in the purchase of other property for her own use; it also involves the right of the wife to the rents and profits of her separate property, and its use by her in the investment of the same as she may choose. To say that the wife shall have the sole and exclusive control of her separate property, and that she may sell and transfer the same as if unmarried, and then to attach to such — 353 — right the condition that when in controlling such property she receives the rents and profits thereof, such rents and profits shall become common property and under the exclusive management of the husband, and that when she sells and conveys her separate property, the receipts of such sale, or the property in which she invests such receipts, shall become common property and pass wholly beyond her right to use the same, or her control thereof, is affixing a condition to the right given to her which utterly destroys the right itself. We have no-doubt that under this statute the rents and profits of the wife’s separate property are as absolutely hers, and as completely under her control, as the property of which they are the fruits; and that she may use such rents and profits and the proceeds derived from the sale of any of her separate property in the purchase of other property, and that such property so purchased will remain a part of her separate estate; and we have no doubt that every provision of our statutes in force when this act of 1871 was passed, limiting the rights or powers of the wife as to her separate property by making the rents and profits thereof, or the receipts for the sale thereof, or the property purchased therewith, common property to be managed and controlled by the husband, was in conflict with the provisions of this act, and was repealed by the repealing clause thereof. If the instructions under consideration are correct, from the day of the wife’s marriage, however ample her separate means may be, she is wholly deprived of their use and enjoyment. She may not gratify her taste by the purchase of a single article for the adornment of her person, nor bestow upon a needy relative, be the same father, mother, brother, or sister, such aid as their needs may require and such as she may desire to relieve; she may not even of her own fortune provide for the education of her own children if she have such when married, but must depend wholly upon the will or whim of her husband in the use of means which may have been acquired by her own labor, learning, and skill before her marriages Practically, this ruling places the wife in the same status in which she stood under the act of 1865 as to her separate property, the only effect given to the act of 1871 being to — 354 — give the barren right to convey without being joined with the husband, and places the proceeds of her separate property, as well as the rents and profits thereof, wholly in the hands and under the control of the husband. The act of 1865, above referred to, in its first section prescribes that “all property, both real and personal, of the wife owned by her before marriage, and that acquired after-wards by gift, bequest, devise, or descent, shall be her separate property.” The second section provides that “all property acquired after marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.” The ninth section of the same act takes from the wife all beneficial interest in her separate property by giving to the husband the management and control of the same, and the rents, issues, and profits thereof, making the rents, issues, and profits common property. It was doubtless the intention of the legislature, by the act of 1871, to get rid of the obnoxious provision in the act of 1865, by which the wife’s separate property became in effect common property and subject to the management and control of the husband. The act of 1871 gives to the wife perfect freedom in the control, use, and enjoyment of her separate property, and makes her wholly independent of her husband in regard thereto. We hold further, that the act of 1871 adds another method to those provided in the second section of the act of 1865, by which the wife may acquire property after marriage; that the right to the sole and exclusive control of her separate property, and the right to sell and convey the same free from the interference of her husband, involves the right in her, and for her own use, to purchase property with the means she may derive from such sale, or by the investment of the rents and profits of her separate estate. These views accord with the decision of this court at this present term in the case of Charauleau v. Woffenden, ante, 243. The instructions as given must be presumed to have influenced the jury in their verdict as to certain of the personal property in controversy. — 355 — We do not deem it necessary to pass upon other matters occurring at the trial and assigned as error. The judgment must be reversed, and the cause remanded for a new trial; and it is so ordered. Porter, J., concurred.