Wortham v. Gurley

SÓMERYILLE, J. The action is one of detinue, instituted by the appellees, Gurley and Mrs. Emma Stewart, as co-plaintiffs, for sundry articles of personal property appurtenant to the machinery of a saw-mill, claimed by the appellants, who were defendants in the court below. Mrs. Stewart, one of the plaintiffs, is shown by the evidence to be a married woman, whose husband was still living at the time of the commencement of the suit. The nature of her estate in the property sued for — whether an equitable or a statutory separate estate — is important in determining the question raised as to whether the husband was a necessary party plaintiff. We can discover no evidence in the record which would tend to show in her any other than a statutory separate estate. It is shown that her husband purchased the propei'ty from Gurley, who was the original owner, and who is now one of the plaintiffs in the action, claiming to be a half owner, or tenant in common with the wife. Whether Stewart purchased for the exclusive benefit of his wife, and a's her agent, or for the benefit of the partnership of Iiewlet & Co., of which it is claimed Mrs. Stewart was a member, the nature of the wife’s estate would be statutory — one created by the statute, — which comprehends all estates acquired in any manner, except such as are rescued from the operation of the provisions of the Constitution and the Code by being made separate by contract of the parties. This can be done only by words indicating an intention to exclude the marital rights of the husband, or by a gift or conveyance made by the husband direotl/y to the wife. A purchase from a third person, in the name, or for the benefit of the wife, is insufficient for this purpose, although the husband may furnish the consideration from his own means as a gratuity.—Williams v. Williams, 68 Ala. 405; Harris v. Harris, 71 Ala. 436; Cahalan v. Monroe, Smaltz & Co., 70 Ala. 271 ; Code, 1876, § 2705 ; Const. 1875, Art. x, § 6; Lehman v. Meyer, 67 Ala. 396. Admitting that the defendant could raise the question of the husband’s non-joinder as plaintiff under the general issue, and without a special plea of Mrs. Stewart’s coverture, pleaded by way of abatement — a point unnecessary to be decided, — it is obvious that the husband was not a proper party plaintiff. The action relates to the corpus of the statutory separate estate of Mrs. Stewart — if she had any estate at all in the property sued for, — and was properly brought in the name of the wife alone, without joining her husband as a co-plaintiff.—Hurst v. Thompson, 68 Ala. 560; Pickens v. Oliver, 29 Ala. 528; Code, 1876, § 2892. [361] It is objected that the plaintiff Gurley shows no title to the property in controversy, such as will authorize a recovery by him, and that if he be debarred from recovery, his co-plaintiff is also debarred. It would be a sufficient answer to this to say, that the evidence tends to show that Gurley was in actual possession of these articles of property, and of the premises upon which they were situated, claiming them as the property of himself and Mrs. Stewart by purchase and peaceable tenure, and that Iiewlet, under whom the defendants claim, entered upon the premises by force and took possession of the property as a wrongdoer. In such a case, the action of detinue, like that of trover, may be maintained without proof of any general or special property in the goods claimed. The mere possession of the plaintiffs was sufficient evidence of title as against a trespasser or wrongdoer.—Huddleston v. Huey, 73 Ala. 215. There is no pretense that Gurley held possession for himself alone, but for the joint benefit of himself and Mrs. Stewart, in full recognition of her rights as his co-tenant. ILis possession was, therefore, hers, on the familiar principle that the possession of one tenant in common is also that of his co-tenant. And the rule that the possession of personal property is prima faoie evidence of title, or ownership, applies as well to property belonging to the wife as to that owned by any other person. The possession of her property by the husband, or by herself and husband jointly, when it is shown to be her statutory separate estate, is her possession, he being presumed to hold merely in his capacity of statutory trustee, with powers specially defined and strictly limited.—Patterson v. Kicker, 72 Ala. 406; Brunson v. Brooks, 68 Ala. 249. But apart from this view, there is another which seems conclusive. When Hewlet was in possession of this property, under the purchase from Gurley, he held it for the firm of Hewlet & Co. He asserted claim to an undivided half interest in it, as one of the partners. When he sold it back to Gurley, he did sd upon the representation that he was joint owner, having title to such interest. Gurley bought on the faith of this representation, and parted with value in the belief of its asserted truth. Hewlet, therefore, by his. sale to Gurley, having affirmed that he had title, and thereby induced the purchase, can not now be permitted to assert the contrary to the prejudice of one whom he has misled by his deceit. It can avail him nothing in this suit, that he had no good title to the undivided half interest which he claimed, by reason of Mrs. Stewart’s failure to execute to him a legal conveyance of her statutory separate estate. There is a clear estoppel, operating to preclude him from denying the truth of his former affirmation. Force is added to this view by the fact that nowhere in this [362] record does Mrs. Stewart undertake to assail the legal sufficiency of the alleged sale made by her of an undivided half interest in this property to TIewlet. By uniting as co-plaintiff with Gurley, in this action, she, on the contrary, solemnly affirms its validity. TIewlet, therefore, can not assail it. As we have said, he is estopped by his previous conduct, and this estoppel binds the defendants, who are his privies in estate, and whose possession, derived from him through his tortious seizure, is equally wrongful with his own. There .was nothing objectionable in the action of the court putting the verdict of the jury in proper form after they had returned it. There was no change in the amount of recovery, or in the substance of the verdict, which remained unaltered. It was a correction in form only.—Ewing v. Sanford, 21 Ala. 157; Hughes v. The State, 12 Ala. 458. There is air obvious difference between dictating the substance of a verdict to a jury before they retire for deliberation, and merely correcting the form of a verdict after its rendition in open court. The rule declared by the court as to the proper measure of damages was free from error. In detinue, as in trover, it is permissible for the jury to assess the value of the property taken at any time between the date of the tort and the trial. Otherwise a tort-feasor might often reap pecuniary profit from his own wrongful act by a mere retention of the property sued for after judgment against him.—Johnson v. Marshall, 34 Ala. 522; Holly v. Flournoy, 54 Ala. 99. In our opinion the court also properly instructed the jury, that the damages required to be assessed for the detention of the property included any deterioration in its value occasioned by the fault of the wrongdoer, through neglect, abuse, or non-use, during the period of detention. This injury is shown to have resulted from the tortious act of seizure and detention as its natural and proximate cause, and was a legitimate element of damage in addition to the value of rent or hire. This is the rule adopted in Freer v. Cowles, 44 Ala. 314, and is generally supported by authority. —Allen v. Fox, 51 N. Y. 562; Zitzke v. Goldberg, 38 Wis. 216 ; 2. Sedgw. Dam. (7th Ed.) 424, note a. The rule, as observed by Mr. Sutherland in his recent work on damages, does not include any compensation for the wear and depreciation naturally consequent upon the use of the property; but “if the defendant, by his wrongful conduct, has deteriorated the property, or a loss on its value has proximately and with certainty resulted from the wrongful detention, that should be recovered for, in addition to the value, in order to give the owner full indemnity.” — -3 Suth. Dam.' pp. 546, 541, 547. This we deem to be the correct rule, and a proper construction of the statute, which requires the jury to [363] assess not only the value of the property, but “ damages for its detention.” — Code 1876, § 2944. The mere recovery of the property, in its depreciated condition, which the plaintiff has no option to refuse, with the value of its hire or rent during detention, would manifestly be incommensurate with the rule of adequate compensation, which is a fundamental principle in the law of damages. The question of parties to this action can not be affected by the fact, that Mrs. Stewart and her husband may have become non-residents of Alabama at the time it was commenced. The wife was resident here when she acquired title to the property. It was her statutory separate estate, created by the laws of Alabama, operating upon a contract of sale made in this State. No law of any foreign State or jurisdiction could influence it. The law of this State — the lex fori — must govern under these circumstances as to all forms of remedies and modes of proceeding adopted in legal actions pertaining to it.—King v. Martin, 67 Ala. 177; Story’s Confl. L., § 556; Judge v. Wright, 73 Ala. 324; 3 Parson’s Contri *588. The rulings of the circuit court present no errors prejudicial to the appellants, and the judgment must be affirmed.